Purchase Order Terms & Conditions

1. APPLICABILITY. (a) These Purchase Order Terms and Conditions (the “Terms”) are incorporated by reference into each purchase order issued by Deepnight, Inc. (“Deepnight”) that references these Terms or the URL at which these Terms are published (the “Purchase Order”). The Terms are available at deepnight.com/pages/po-terms and are binding on the party identified as Vendor in the Purchase Order (the “Vendor”) as of the date of the Purchase Order, whether or not Vendor has independently accessed or reviewed them. The issuance of the Purchase Order to Vendor is an offer by Deepnight for the purchase of goods specified in the Purchase Order (the “Goods”) from Vendor in accordance with and subject to these Terms. The Terms together with the Purchase Order are referred to herein as the “Order.”(b) The Order, together with any documents incorporated by reference, constitutes the entire agreement of the parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, and communications, both written and oral, with respect to the subject matter of the Order. The Order expressly limits Vendor’s acceptance to its terms and prevails over any terms contained in any other documentation. Any terms or conditions proposed by Vendor, whether additional to or conflicting with the Terms, including any of Vendor’s general terms and conditions of sale, order acknowledgments, invoices, or any other document issued by Vendor in connection with the Order, are hereby expressly rejected and shall be null, void, and of no force or effect. No course of dealing, course of performance, acceptance of delivery, or payment by Deepnight shall be construed as acceptance of any such additional or conflicting terms. Any purported acceptance by Vendor that is made conditional on Deepnight’s agreement to additional or different terms is rejected, and commencement of performance by Vendor shall constitute Vendor’s unqualified acceptance of the Terms.(c) These Terms apply to any repaired or replacement Goods provided by Vendor.(d) Deepnight has no minimum purchase or future purchase obligations under the Order.

2. ACCEPTANCE. The Order is not binding on Deepnight until Vendor accepts it by (a) providing a written confirmation to Deepnight (email acceptable), (b) signing and returning the Purchase Order, or (c) beginning performance and providing Deepnight written notice of such performance (email acceptable). Deepnight may withdraw the Order at any time before it is accepted by Vendor.

3. DELIVERY DATE. Subject to Section 4, Vendor shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order; if no delivery date is specified, Vendor shall deliver the Goods within thirty (30) days of Deepnight’s issuance of the Purchase Order (the “Delivery Date”). Timely delivery is of the essence. If Vendor fails to deliver the Goods in full on the Delivery Date, Deepnight may: (a) agree in writing to a different Delivery Date; or (b) terminate the Order immediately, without liability to Vendor, by providing written notice to Vendor.

4. SHIPPING INSTRUCTIONS. Unless otherwise specified on the face hereof, all Goods shall be packaged by Vendor in suitable containers to permit safe transportation and handling. Each delivered container must be labeled and marked to identify contents without opening, and all boxes and packages must contain packing sheets listing contents. Deepnight’s purchase order number, as well as Deepnight’s part number(s), must appear on all shipping containers, packing sheets, delivery tickets, and bills of lading. All shipments must be sent with signature required upon delivery; no Goods shall be left unattended at the delivery location without an authorized signature from a Deepnight representative. All Goods shall be shipped on carriers certified compliant with C-TPAT (Customs-Trade Partnership Against Terrorism).

5. TITLE AND RISK OF LOSS. Unless otherwise specified on this Order, Goods shall be delivered DDP Deepnight’s location designated on the face hereof (Incoterms 2020), at which time title and risk of loss on the Goods shall pass to Deepnight. If any of the ordered Goods are destroyed prior to the time risk of loss passes to Deepnight, Deepnight may cancel this Order as to the destroyed Goods or require the prompt delivery of substitute Goods of equal quantity and quality.

6. ITEMS FURNISHED BY DEEPNIGHT. Unless otherwise specified by Deepnight in writing, all designs, tools, patterns, drawings, data, materials, and equipment supplied or paid for by Deepnight to Vendor shall remain the property of Deepnight, shall be used only for making the Goods for Deepnight, shall be insured by Vendor at replacement value, and shall be returned to Deepnight in good condition upon completion of this Order. Vendor assumes all responsibility for the accuracy of tooling used in the production of the Goods, whether such tooling is fabricated by Vendor or furnished by Deepnight.

7. AMENDMENT AND MODIFICATION. No change to the Order is binding upon Deepnight unless it is in writing, specifically states that it amends the Order, and is signed by an authorized representative of Deepnight. Deepnight may, by purchase order amendment issued to Vendor, change (a) the method of shipment or packing, (b) the drawings, designs, or specifications, (c) the place of delivery, or (d) the shipment date. Vendor shall promptly inform Deepnight of any modifications to the delivery schedule necessitated by the changes. Within 3 days from receipt of a purchase order amendment, Vendor shall notify Deepnight in writing of any increase or decrease in the cost of performance caused by a purchase order amendment and provide supporting documentation. Deepnight shall make an equitable adjustment in the Order to reflect valid cost variances by the requested Deepnight changes. Vendor shall advise Deepnight in writing of any foreseeable part shortages, and shall advise Deepnight in writing 6 months in advance of obsolescence and/or end-of-life situations that could prevent Vendor from supporting Deepnight ability to order Goods.

8. INSPECTION OF GOODS. Deepnight shall have thirty (30) days from the date of receipt of the Goods for inspection and acceptance testing. Any Goods not rejected during that 30-day period shall be deemed accepted.

9. PRICE. The price of the Goods is the price stated in the Purchase Order (the “Price”). If no price is included in the Purchase Order, the Price shall be the price set out in Vendor’s published price list in force as of the date of the Order. Unless otherwise specified in the Order, the Price includes all fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor, or transportation costs or otherwise, without the prior written consent of Deepnight.

10. PAYMENT TERMS. Vendor shall issue an invoice to Deepnight on or any time after the completion of delivery and only in accordance with the Terms. Deepnight shall pay all properly invoiced and undisputed amounts due to Vendor within sixty (60) days after Deepnight’s receipt of such invoice. The parties shall work in good faith to resolve disputes promptly. Vendor shall continue performing its obligations under the Order during any such dispute.

11. WARRANTIES. Vendor represents, warrants, and covenants to Deepnight that: (a) for a period of twenty-four (24) months from the Delivery Date, all Goods will: (i) be free from any defects in workmanship, material, and design; (ii) conform to applicable specifications, drawings, designs, samples, and other requirements specified by Deepnight; (iii) be new, unused, and safe for their intended purpose and operate as intended; and (iv) be merchantable; (b) no claim, lien, or action exists or is threatened against Vendor that would interfere with Deepnight’s use or sale of the Goods; (c) the Goods do not and will not infringe or misappropriate any third party’s patent or other intellectual property rights; and (d) Deepnight will receive good and valid title to the Goods, free and clear of all encumbrances and liens of any kind. These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods by Deepnight and are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Deepnight’s discovery of the noncompliance. Goods not meeting this warranty may be returned to Vendor for credit or replacement, and Vendor will be responsible for governmental fines levied for failure to meet Vendor’s environmental specifications. Should Goods shipped in any 90-day period to Deepnight or should all Goods received by Deepnight experience a failure rate of more than 3% from the same defect or more than 5% from cumulative defects during the warranty period, Vendor will be responsible for all reasonable costs incurred in rectifying such failures, including testing and field-recovery costs.

12. INDEMNIFICATION. Vendor shall defend, indemnify, and hold harmless Deepnight, its subsidiaries, affiliates, successors or assigns, and its and their respective directors, officers, managers, members, advisors, and employees (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, action, judgment, award, penalty, fine, cost, or expense, including reasonable attorney fees and the cost of enforcing any indemnification right hereunder (collectively, “Losses”), arising out of or in connection with (a) infringement by the Goods of intellectual property or proprietary rights, (b) personal injury or property damage caused by the Goods, (c) defects in the Goods which amount to a breach of Vendor’s warranties in Section 11, or (d) breach of Section 13. Vendor shall not enter into any settlement without Deepnight’s or the applicable Indemnitee’s prior written consent.

13. COMPLIANCE WITH LAW. Vendor is in compliance with and shall comply with all applicable laws, regulations, and ordinances. Vendor has and shall maintain all licenses, permissions, authorizations, consents, and permits required to carry out its obligations under the Order. Without limiting the foregoing, Vendor shall comply with all applicable export control and trade sanctions laws and regulations, including but not limited to the U.S. Export Administration Regulations (EAR), the International Traffic in Arms Regulations (ITAR), and the regulations administered by the U.S. Office of Foreign Assets Control (OFAC). Vendor shall not export, re-export, transfer, or otherwise provide any Goods, technology, or technical data in violation of any such laws or regulations, and shall obtain all required export licenses or authorizations prior to any such activity.

14. TERMINATION. Deepnight may terminate the Order, in whole or in part, at any time for convenience with respect to undelivered Goods on thirty (30) days’ prior written notice to Vendor. Deepnight may terminate the Order with immediate effect upon written notice to Vendor if Vendor has materially breached the Order and failed to cure such breach within fifteen (15) days of written notice from Deepnight describing the breach. If Vendor becomes insolvent, is generally unable to pay its debts as they become due, or files for bankruptcy, or if bankruptcy, receivership, reorganization, or assignment-for-benefit-of-creditors proceedings are commenced against it, Deepnight may terminate the Order upon written notice to Vendor. If Deepnight terminates the Order for any reason, Vendor’s sole and exclusive remedy is payment for the Goods received and accepted by Deepnight prior to the termination. The total paid by Deepnight for such cancellation shall not exceed the price on the Order for the cancelled Goods.

15. 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 or delay in exercising any right, remedy, power, or privilege arising from the Order shall operate or be construed as a waiver thereof.

16. CONFIDENTIALITY. Vendor shall not, without first obtaining Deepnight’s written permission, advertise, publish, or disclose the terms, details, or specifications of this Order, the amount of revenue generated or to be generated from this Order, or the fact that it has furnished or has contracted to furnish Deepnight with the Goods.

17. ASSIGNMENT. Vendor shall not assign its rights or obligations under this Order without the advance written permission of Deepnight. Deepnight may assign its rights under this Order to a subsidiary or affiliate upon written notice to Vendor.

18. INTELLECTUAL PROPERTY. To the extent any Goods are designed or manufactured specifically to Deepnight’s specifications (“Custom Goods”), all intellectual property created by Vendor in connection with such Custom Goods (“Developed IP”) shall be the sole property of Deepnight, and Vendor hereby assigns to Deepnight all right, title, and interest in and to such Developed IP. To the extent any Custom Goods incorporate Vendor’s pre-existing intellectual property (“Background IP”), Vendor retains ownership of such Background IP and grants Deepnight a non-exclusive, perpetual, royalty-free license to use it solely as necessary to use and maintain the Custom Goods.

19. RELATIONSHIP OF THE PARTIES. The parties are independent contractors. Nothing in the Order creates any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party has authority to contract for or bind the other party.

20. NO THIRD-PARTY BENEFICIARIES. The Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns. Nothing in the Order is intended to confer any legal or equitable right, benefit, or remedy on any other person or entity.

21. DISPUTE RESOLUTION. Any dispute, claim, or controversy arising out of or relating to the Order, or the breach, termination, enforcement, interpretation, or validity thereof, shall be resolved exclusively by final and binding arbitration administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures, before a single arbitrator. The arbitration shall be conducted in San Francisco, California. The arbitrator shall apply the laws of the State of California. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction. Nothing in this Section shall prevent either party from seeking injunctive or other equitable relief from a court of competent jurisdiction where necessary to prevent irreparable harm.

22. CUMULATIVE REMEDIES. The rights and remedies under each Order are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties, or otherwise. Notwithstanding the foregoing, the parties intend that, if Deepnight terminates the Order in accordance with Section 14, Vendor’s sole and exclusive remedy is the right to payment for the Goods received and accepted.

23. SEVERABILITY. If any term or provision of the Order is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Order or invalidate or render unenforceable such term or provision in any other jurisdiction.

24. SURVIVAL. Subject to the limitations and other provisions of the Order: (a) the representations and warranties of the parties contained in the Order shall survive its expiration or earlier termination; and (b) the following provisions, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of the Order: Warranties, Indemnification, Compliance with Laws, Confidentiality, Dispute Resolution, and Survival.