REEF PURCHASE ORDER TERMS AND CONDITIONS
Posted: November 5, 2020
- Acceptance of PO. These Reef Purchase Order Terms and Conditions (“Terms”) form part of the purchase and bind REEF and Supplier upon the earlier of acceptance or completion of an approved Purchase Order (each, a “PO”). “REEF” means REEF Global Inc. or its applicable Affiliate. “Supplier” means the supplier, seller, or other applicable party indicated on the PO. The PO is REEF’s offer to Supplier and is not an acceptance of any offer by Supplier. Supplier must confirm or reject the PO within 24 hours of Supplier’s receipt. Upon Supplier’s confirmation of acceptance of the PO, via email, verbally, or otherwise, Supplier cannot terminate the PO. Shipment of any part of the Goods or performance of any of the Services covered hereunder also constitutes acceptance. Any additional or different terms proposed by Supplier are rejected unless REEF expressly agrees in writing. Any changes to the PO must be included in a re-issued PO from REEF. REEF will not be liable for any verbal or written orders or changes to orders unless contained within a PO issued by REEF. REEF is only buying the Goods or Services at the quantities identified in the PO. REEF is not responsible for payment for goods or services delivered by Supplier not in conformance with the PO, and Supplier will be responsible for return shipment costs for all such non-conforming goods or services.
- Cancellation of PO. Time is of the essence with respect to all obligations under the PO. REEF reserves the right to cancel the PO, or any portion thereof, without liability, if (1) delivery or completion is not made as specified in the PO or (2) Supplier fails to meet contract commitments as to exact time, price, quality, or quantity in the PO. Supplier cannot terminate the PO after accepting except as provided in this Section 2. If either party ceases to conduct its operations in the normal course of business (including inability to meet its obligations as they mature) or if any proceeding under the bankruptcy or insolvency laws is brought by or against a party, or a receiver or administrator is appointed or applied for, or an assignment for the benefit of creditors is made by a party (whether voluntary or involuntary), the other party may terminate a PO without liability except for deliveries previously made or for Goods or Services covered by a PO which are completed as of the date of termination and subsequently delivered in accordance with the terms of a PO.
- Prices and Taxes. All prices are firm unless otherwise agreed in writing by REEF. The prices set forth in the PO constitute Supplier’s complete compensation for any Goods or Service in such PO, and REEF will not pay Supplier for any fees, expenses, or costs except as specifically stated in such PO. The prices set forth in the PO will include all sales and use taxes, duties, and charges of any kind imposed by any federal, state, or local governmental authority on amounts payable by REEF under the PO, and in no event will REEF be required to pay any additional amount to Supplier in connection with any taxes, duties, or charges. Supplier will bear sole responsibility for payment of all applicable income or employment tax or withholding arising from its performance of its obligations under a PO.
- Invoice and Payment. Unless otherwise requested by REEF, invoices will (i) be rendered separately for each delivery, (ii) cover not more than one PO, (iii) include the applicable PO number, and (iv) include a line itemization of all the Goods, including quantity, description, and price per unit for each item on the PO, and all the Services. Subject to Supplier’s compliance with these Terms and unless otherwise agreed in writing by REEF, REEF will pay Supplier’s undisputed invoice within sixty (60) days of receipt of such invoice. Supplier will not (v) invoice REEF more than ninety (90) days after Supplier’s performance under the PO is completed (such late invoice is referred to herein as a “Late Invoice”), (vi) initially raise a claim for payment of a previously issued invoice more than 365 days after the invoice date (such late claim is referred to herein as a “Late Claim”), or (vii) unless otherwise agreed in writing by REEF, invoice before Supplier’s performance under the PO is completed. Supplier waives all rights and remedies related to Late Invoices and Late Claims.
- Termination for Convenience by REEF. REEF may terminate a PO at any time for any reason upon notice to Supplier. In such event, REEF’s only liability will be to pay Supplier the amounts, costs, and other charges under the PO for, as applicable, the Services completed or Goods delivered and accepted up to the effective date of such termination.
- Intellectual Property.
- IP Generally. Subject to the rights of Supplier or any third party licensors in respect of any pre-existing materials which are supplied by Supplier (“Pre-Existing Materials”) in conjunction with the Goods or Services (including any Deliverables) provided hereunder (collectively, the “Project Materials”), REEF owns all right, title, and interest in and to all Intellectual Property Rights in the Project Materials, and Supplier will assign all such Intellectual Property Rights, with full title guarantee, to REEF immediately upon creation of any Project Materials. Supplier will do all such things and sign all documents or instruments reasonably necessary to enable REEF to obtain, defend, and enforce its rights in the Project Materials. Under no circumstances will Supplier as a result of a PO obtain any ownership interest or other right, title, or interest in or to the Intellectual Property Rights of REEF, including any Confidential Information. Upon REEF’s request and in any event upon the expiration or termination of the PO, Supplier will at its expense promptly deliver to REEF all copies of Project Materials then in Supplier’s custody, control, or possession.
- Made for Hire; Assignment. Supplier acknowledges and agrees that any and all Deliverables that may qualify as “work made for hire” as defined in the Copyright Act of 1976 (17 U.S.C. § 101) is hereby deemed “work made for hire” for REEF and all copyrights therein will automatically and immediately vest in REEF. To the extent that any Deliverables does not constitute “work made for hire,” Supplier hereby irrevocably assigns to REEF and its successors and assigns, for no additional consideration, Supplier’s entire right, title, and interest in and to the Deliverables and all Intellectual Property Rights therein, including the right to sue, counterclaim, and recover for all past, present, and future infringement.
- In the event that REEF is enjoined from using the Goods or Services delivered hereunder, Supplier, at its expense, will promptly (i) procure for REEF the right to continue using the Goods or Services, (ii) replace the Goods or Services with non-infringing goods or services or modify same to become non-infringing, all at Supplier’s expense and to REEF’s satisfaction, or (iii) remove the Goods at Supplier’s expense and refund the purchase price to REEF.
- “Intellectual Property Rights” means any and all rights arising in the US or any other jurisdiction throughout the world in and to (a) trademarks, service marks, trade dress, trade names, logos, corporate names, and domain names, and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing, (b) copyrights and works of authorship (whether copyrightable or not), (c) patents, patent disclosures, and inventions (whether patentable or not), (d) trade secrets, know-how, and other confidential or proprietary information, and (e) all other intellectual property, in each case whether registered or unregistered, and including all registrations and applications for such rights and renewals or extensions thereof, and all similar or equivalent rights or forms of protection in any part of the world. This Section 6 will survive the termination or expiration of the PO.
- REEF, its Affiliates, and its or their agents (as applicable, such entities collectively, the “Disclosing Party”) may disclose or make available to Supplier nonpublic information, regardless of the form in which it is provided, that is either labeled as “confidential” or, under the circumstances, reasonably should be considered confidential (“Confidential Information“). Confidential Information includes (a) nonpublic information relating to the Disclosing Party’s technology, products, services, data, customers, business plans and methods, promotional and marketing activities, finances, and other business affairs and (b) third-party information that the Disclosing Party is obligated to keep confidential.
- Confidential Information does not include any information that: (a) is or becomes publicly available without breach of these Terms, (b) was known by Supplier prior to its receipt from Disclosing Party, (c) is disclosed to Supplier from any third party, except where Supplier knows, or reasonably should know, that such disclosure constitutes a wrongful or tortious act, or (d) is independently developed by Supplier without use of any Confidential Information.
- Supplier will use Confidential Information only to provide the Goods or Services to REEF under the PO. Except as expressly provided in this Section 7, Supplier will not disclose Confidential Information to anyone without the Disclosing Party’s prior written consent. Supplier will take reasonable measures to avoid the disclosure, dissemination, or unauthorized use of Confidential Information. Supplier will restrict the possession, knowledge, and use of Confidential Information to its directors, officers, employees, contractors, agents, legal and accounting advisors, and Affiliates who (a) have a need to know Confidential Information to perform the PO, (b) are informed of the confidential nature of the Confidential Information, and (c) have obligations with respect to the Confidential Information that are consistent with these Terms. Supplier will ensure that its Affiliates comply with the obligations of this Section 7. Supplier may disclose Confidential Information as required to comply with orders of governmental entities that have jurisdiction over it or as otherwise required by law. Confidential Information will remain the exclusive property of the Disclosing Party. Supplier acknowledges that a breach of its obligations under this Section 7 could cause irreparable harm to the Disclosing Party as to which monetary damages may be difficult to ascertain or an inadequate remedy. Supplier therefore agrees that the Disclosing Party will have the right, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Section 7. This Section 7 will survive the termination or expiration of the PO except that Supplier’s obligations with respect to Confidential Information will survive for five years following termination or expiration of the PO.
- Warranties Generally. Supplier represents and warrants that: (a) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it is organized; (b) it has all necessary rights, licenses, consents, and authorizations to enter into the PO on behalf of itself and to perform its obligations, exercise its rights, and grant the licenses granted under these Terms; (c) it and all of its subcontractors and agents will at all times comply with all laws, rules, and regulations applicable to the performance of its obligations and exercise of its rights under these Terms; and (d) all information it provides to REEF is true, accurate, and complete. REEF represents and warrants that it is duly organized, validly existing, and in good standing under the laws of the jurisdiction in which the business is organized.
- Insurance. Supplier will, at its expense, carry and maintain such liability insurance as will protect Supplier and REEF from claims under any workmen’s compensation acts and from any other damages from personal injury, including death, which may be sustained by Supplier’s workmen, subcontractors or any of their servants, agents or employees and the general public, and from claims for property damage which may be sustained by any of them, due to the performance of a PO. Supplier will furnish certificates acceptable to the REEF that Supplier has in effect the following insurance. At the request of REEF, Supplier will provide REEF with no less than fifteen (15) days advance notice of cancellation or material change in said coverage. Supplier’s insurance coverage will include at a minimum:
(1) Workers’ Compensation Insurance required by the laws of the state and/or country in which Supplier’s main office is domiciled, and any other state(s) and/or country(ies) where Services will be performed under a PO; and (2) Commercial General Liability Insurance as is reasonable and customary or otherwise required by law in the state(s) and/or country(ies) in which the Services will be performed under a PO, including bodily injury, property damage, personal injury liability and contractual liability covering all operations of Supplier.
- Compliance with Laws. Supplier will comply with all applicable regional, country, state, provincial, and local laws, rules, and regulations, including those laws, rules, and regulations related to labor, health, safety, and the environment and labor employed on the Services. Delivery of Goods or completion of Services will be deemed to be Supplier’s certification that such Goods or Services comply with all applicable laws, rules, and regulations.
- Data Privacy and Security. If Supplier will Process Personal Data in connection with the Purchase Order or any Services, Supplier: (a) will (i) process the Personal Data in compliance with all applicable laws, rules, and regulations (including those related to data privacy and security, e.g., CCPA and GDPR as applicable) and (ii) not Process the Personal Data for any purpose other than the specific purposes of performing the PO for or any Services to REEF or otherwise permitted by applicable law; and (b) will implement reasonable and appropriate technical, organizational, and administrative measures to protect the Personal Data from any Data Breach and those measures will, at a minimum, comply with all applicable laws, rules, and regulations. Supplier will ensure that any Personal Data and any other Confidential Information that Supplier Processes in connection with the PO is not subject to any Data Breach. “Process” means collect, access, retain, transfer, store, use, disclose, or otherwise process. “Personal Data” means any personal data or personal information of any identified or identifiable individuals, including any such data or information as defined in applicable data privacy or protection law, e.g., GDPR or CCPA. “Data Breach” means a breach of confidentiality or data integrity or a security compromise of a network, system, or server resulting in the accidental, unauthorized, or unlawful destruction, loss, alteration, processing, deletion, disclosure, access, use, transfer, or acquisition of Personal Data or other Confidential Information.
- Indemnification. Supplier will defend, indemnify, and hold harmless REEF, its Affiliates and Site Operators, and its and their officers, directors, employees, agents, assigns, and successors (collectively, “REEF Parties”) from and against any liability, damage, loss, or expense (including reasonable attorneys’ fees and expenses of litigation) (collectively, “Losses”) in connection with any third party claim, suit, action, demand, or judgment (collectively, “Claims”) arising from or in connection with (i) Supplier’s performance of a PO, (ii) the Goods or Services, or (iii) Supplier’s actual or alleged breach of these Terms. “Site Operators” are any third parties that own or operate the site where any portion of the Services is performed. Such Site Operators are intended third-party beneficiaries of this Section 12 to the extent permitted under applicable law. This Section 12 will survive any termination or expiration of the PO.
- LIMITATIONS OF LIABILITY. IN NO EVENT WILL REEF BE LIABLE TO SUPPLIER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, REEF’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE PO WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY REEF TO SUPPLIER UNDER THE PO DURING THE 6-MONTH PERIOD PRIOR TO THE DATE SUCH LIABILITY FIRST AROSE. This Section 13 will survive any termination or expiration of the PO.
- Records. Supplier agrees to keep, and cause its subcontractors to keep, proper records and books of account showing all data necessary for determining the costs, amounts, and charges earned under a PO in such detail as reasonably requested by REEF. Such records and books of account will be open to audit by a representative of REEF at reasonable times and for a period of twelve (12) months after the expiration or termination of a PO.
- Set-Offs. REEF may at any time set-off any amounts owing at any time from Supplier to REEF against any amount payable at any time by REEF to Supplier.
- Assignment and Subcontracting. Any assignment or transfer of a PO by Supplier without the prior written consent of REEF will be void. Supplier will not subcontract nor delegate performance of any part of a PO without the prior written consent of REEF. REEF may (a) perform any of its obligations or exercise any of its rights under the PO through one or more of its Affiliates and (b) assign the PO to an Affiliate or in connection with any merger, reorganization, sale of all or substantially all of REEF’S assets, or any similar transaction. “Affiliate” means with respect to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity. Subject to the foregoing, the PO is binding on and inures to the benefit of the parties to the PO and their respective permitted successors and permitted assigns.
- Governing Law. The validity, interpretation, and performance of a PO will be governed by the laws of the State of New York, US, without giving effect to its conflict or choice of laws provisions, and applicable US federal law. For the avoidance of doubt, the United Nations Convention on Contracts for the International Sale of Goods (CISG) will not apply. This Section 17 will survive any termination or expiration of the PO.
- Force Majeure. Neither party hereto will be liable to the other for default or delay in performing its obligations hereunder if caused by an act of God (including but not limited to: flood, tornado, hurricane, earthquake), fire, explosion, riot or other civil unrest, war, terrorist threats or acts, governmental order or regulation or national or regional emergency in effect after the date of a PO (each, a “Force Majeure Event”); provided, however, that failures or delays related to the performance or non-performance of Supplier’s suppliers, vendors, or other third parties will not constitute a Force Majeure Event. A Force Majeure Event will extend a party’s time for performance only by the length of time such Force Majeure Event continues. A party experiencing a Force Majeure Event will promptly notify the other party, will take prompt commercially reasonable steps to abate, eliminate, and correct the Force Majeure Event as soon as reasonably possible, and will resume performance as soon as the Force Majeure Event has abated or been corrected or eliminated.
- Miscellaneous. A PO constitutes the entire agreement between the parties hereto pertaining to the subject matter thereof, and there are no oral understandings, representations or warranties affecting it, except for any Master Services, Master Purchase, Master Supply, or other similar agreement that is signed by both parties, in effect, and applicable to the Goods or Services under the PO (“Master Agreement”). In the event of any conflict, the order of precedence will be as follows in resolving such conflict: the terms of any applicable Master Agreement; a SOW under the Master Agreement; these Terms; the specifications and the drawings. Neither course of performance nor course of dealing nor usage of trade will be used to interpret, construe, qualify, explain, or supplement any of the terms of a PO. A PO may only be amended in writing signed by the parties hereto. No waiver by either party of any breach of any of the terms of a PO to be performed by the other party will be construed as a waiver of any subsequent breach, whether of the same or of any other Term of a PO. The relationship between the parties is that of independent contractors. Nothing contained in a PO will be construed as creating any agency, partnership, joint venture, employment, or other relationship between the parties and neither will have the authority to contract for or bind the other party in any manner whatsoever. The rights and remedies of REEF set forth in a PO are not exclusive and are in addition to all other rights and remedies implied by statute or available at law or in equity. Whenever used in these Terms, unless otherwise specified: (a) the terms “includes,” “including,” “e.g.,” “for example,” “for instance,” “such as,” and other similar terms are deemed to include the term “without limitation” immediately thereafter; (b) the phrases “REEF may,” “REEF will determine,” and other similar terms mean REEF may decide the applicable matter in its sole discretion; and (c) the terms “$” and “dollars” refers to US dollars. This Section 19 will survive any termination or expiration of the PO.
Additional Terms for Purchases of Goods
- Quality of Goods. Supplier will sell to REEF the products, tools, equipment, or other goods described in the PO (the “Goods”). Supplier represents and warrants that the Goods will (a) conform to the descriptions, specifications, drawings, designs, and other requirements specified by REEF, (b) be free from any defects in material, workmanship, or design (other than REEF’s design), (c) be merchantable, (d) be free and clear of all liens, security interests, or other encumbrances, and (e) not infringe or misappropriate the Intellectual Property Rights of any third party. If the Goods are food, beverages, or any other item or product intended for human consumption, Supplier further warrants that such Goods will (f) be fit for human consumption, (g) be sourced, harvested, manufactured, packaged, branded, labelled, stored, transported, and delivered in accordance with all applicable laws, rules, and regulations, (h) not contain any adulterants, contaminants, bacteria, or disease and not be spoiled, (i) not be labeled with any false, misleading, or deceptive statement or claim, and (j) be legal for sale by REEF. The warranties in this Section 20 survive any delivery, inspection, acceptance, or payment of or for the Goods by REEF. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any manufacturers’ warranties related to the Goods are hereby assigned to REEF. Supplier will repair any Goods or replace components and parts as necessary or appropriate, upon request of REEF.
- Acceptance of Goods. REEF will have the right to test and inspect the Goods before acceptance. REEF will conduct such testing and inspection within a reasonable time after receipt of the Goods. REEF may reject any Goods without liability if REEF determines that such Goods are defective in material, workmanship, or design, or not in conformity with the description, specifications, or other requirements of a PO or REEF (collectively, “Defect”). Rejected Goods or additional goods delivered to REEF that were not specified in the PO will be returned at Supplier’s expense and Supplier will reimburse REEF for its related labor and packing costs. Notwithstanding any such testing or inspection, if any of the Goods are found at any time to contain a Defect, REEF will have the right to reject and return such Goods without liability and at Supplier’s expense. Supplier will pay REEF’s cost of inspecting the rejected Goods. No goods returned as defective by REEF shall be replaced by Supplier without written permission of an authorized agent of REEF. In the event REEF communicates to Supplier in writing to have Supplier replace such defective goods, return shipment of defective goods and shipment for replacement goods shall be at Supplier’s expense. In the event REEF communicates in writing to Supplier that REEF will return such defective goods and not receive replacement goods, then Supplier shall issue a full refund to REEF and bear the return shipping costs. For purchases of machinery or equipment, Supplier at its expense will timely repair or replace, as requested by REEF, machinery or equipment proven to have a Defect as long as such Defect is reported by REEF to Supplier by the earlier of either (a) one (1) year from the date the machinery or equipment is placed in operation or (b) eighteen (18) months from date of shipment of the machinery or equipment by Supplier to REEF.
- Changes and Discrepancies. Supplier must notify REEF of any discrepancies, omissions, or lack of clarity in drawings, specifications, or PO for written interpretation. REEF shall have the right at any time before shipment of the Goods to make any changes in the quantities, drawings or specifications, delivery schedules, or in methods of shipment and packaging. If such changes cause an increase or decrease in price or in the time required for performance, Supplier shall promptly notify REEF in writing and REEF shall issue a new or adjusted PO with such change. Changes shall not be binding upon REEF unless evidenced by a new PO issued by REEF.
- Transportation of Goods. Transportation of Goods purchased will be pursuant to the Incoterm specified in the PO. If not specified in the PO, the delivery term will be DDP to REEF’s named place of destination (Incoterms 2020). Title and risk of loss will pass pursuant to the delivery term set specified in the PO, or if not specified in the PO, then the Incoterm set forth in this Section 23.
Additional Terms for Purchases of Services
- Services Generally. Supplier will provide to REEF the services described in the PO (the “Services”). The Services include any Deliverables. “Deliverables” means any deliverables, information, data, content (in any form, including text-based, graphical, interactive, mobile, video, audio, or rich media), writings, drawings, designs, technology, inventions, discoveries, processes, techniques, methods, ideas, concepts, research, proposals, and other materials and items that are created, prepared, produced, authored, edited, modified, conceived, or reduced to practice by or on behalf of Supplier solely or jointly with REEF or others in the course of Supplier providing the Services under the PO. Unless otherwise specified in a PO, Supplier will furnish all software, technology, labor, materials, tools, machinery, equipment, appliances, shoring, scaffolding, transportation, and all other things necessary for the performance of the Services. Supplier acknowledges and agrees that time is of the essence with respect to Supplier’s obligations and that prompt and timely performance is strictly required.
- Quality of Services. Supplier represents and warrants that it will perform the Services: (a) in accordance with the terms and conditions of the PO and these Terms, (b) using personnel of commercially reasonable skill, experience, and qualifications that are legally authorized to provide the Services, and (c) in a timely, workmanlike, and professional manner in accordance with generally recognized industry standards for the same or similar services. Supplier further represents and warrants that the Deliverables and REEF’s use thereof will not infringe or misappropriate the Intellectual Property Rights of any third party. This Section 25 will survive any termination or expiration of the PO. Supplier will replace any personnel performing the Services at the reasonable request of REEF, and Supplier will use its best efforts to promptly appoint a replacement. If REEF determines that Services were not performed in accordance with relevant standards, in addition to any other remedies available to REEF, Supplier will, at REEF’s option: (a) re-perform the Services; (b) reimburse REEF for any expense incurred by REEF to have the Services performed by a third party; or (c) reimburse REEF for any fees or other costs incurred for such Services.
- Changes. REEF may, by giving written notice to Supplier from time to time, make changes in the specifications and/or the drawings, issue additional instructions, or require additional work without invalidating a PO and Supplier will comply with such notice. REEF will pay Supplier for the changes as the parties may reasonably agree. No additional work will be paid for by REEF unless performed in accordance with a written notice from REEF.