Return to - PURCHASE ORDERS LEGAL OVERVIEW
Read this entire order form, including the incorporated terms and conditions located at http://www.seagate.com/legal-privacy/purchase-orders-legal-overview/purchase-orders-eu/. The terms and conditions located at the referenced URL ("Terms") in effect on the Order Date appearing on this order are a material part of this order. Do not accept this order unless you accept the Terms. By accepting this order you agree that you have read, understood and accepted the Terms. If you cannot access the Terms, request them from the buyer.
1. BASIS OF PURCHASE
1.1. Formation of Contract. Seagate agrees to purchase and you agree to supply the goods or services described on the face of the order on the basis of the term of this order.
1.2. Acceptance Must Mirror Offer. This order is an offer to purchase goods or services under these exact terms only, to the exclusion of any other terms that you seek to impose; this order is limited to acceptance of these exact terms without modification. Seagate rejects any previously proposed terms that add, vary, or conflict with this order.
1.3. Additional Terms Are Proposals. Any additional or different terms in your acceptance will be construed as proposals and will not become part of the contract with you unless Seagate agrees in writing to the additional or different terms. All references in this order to "you" or "your" refer to the supplier designated above. All references in this authorization to "us" or "we" refer to Seagate.
1.4. Existing Agreement. If we have an existing formal written agreement with you governing the purchase of your goods or services, then the terms in the formal written agreement will supersede any contrary terms in this order.
2.1. No Price Discrimination. Your prices may not be greater than any prices you offer to any other customer for the same goods or services from the time when this order is placed with you until the time it is fully performed by you. You will immediately notify us and automatically lower your prices to the lowest price you offer to any other customer during that time.
2.2. Last Quoted Price. If no price is specified in this order, then your price must be equal to or less than the last price you previously quoted or charged us.
2.3. Expenses. If this order allows for reimbursement of any expenses, you must comply with the Corporate Travel Policy, located at http://www.seagate.com/legal-privacy/corporate-travel-policy, which is also available from us upon request, and incorporated into this order.
2.4. Prepay & Add. If this order says "prepay & add", then you must prepay all shipping costs and include the actual shipping costs on your invoice as a separate line item. You must provide sufficient documentation for us to verify the actual shipping costs upon request.
2.5. VAT. Unless stated otherwise, all items listed on this order are exclusive of Value Added Tax, which is payable by us if we receive a valid VAT invoice. If an item is designated as subject to VAT, then you must include the VAT on your invoice as a separate line item.
2.6. Prices All Inclusive. Except for "prepay & add" and VAT, the total price in this order includes all charges and expenses related to the shipping and delivery of goods or the performance of services. If the price is based on weight of the goods, the weight ordered excludes the weight of any packaging.
2.7. Invoices. You will submit a separate invoice to us for each shipment. Your invoice must include this order number and may not cover more than one order. We will pay invoices issued under this order 60 days after receipt. Payment of your invoice does not constitute acceptance of your products or services; any payment may be subject to adjustment for errors, overcharges, shortages, or other defects.
3. SHIPPING TERMS, INSPECTION AND TESTING
3.1. Incoterms. All shipping terms in this order refer to International Chamber of Commerce, Incoterms 2010. If the goods are to be delivered through a "Just-In-Time" (JIT), "Vendor Managed Inventory" (VMI) or "3rd Party Logistics" (3PL) facility, the delivery destination is not the JIT, VMI or 3PL facility, but the Seagate facility that receives the goods after the goods are shipped from the JIT, VMI or 3PL facility.
3.2. Transfer of Title. Title of goods will pass to Seagate when delivery is complete according to the designated Incoterm as defined in Incoterms 2010.
3.3. Risk of Loss. Risk of damage to or loss of the goods will pass to us upon delivery to us in accordance with this order or the governing formal agreement.
3.4. Inspection and Testing. You may not unreasonably refuse any request by us to inspect and test the goods or any of them during manufacture, processing or storage at your premises or at any third party before dispatch, and you must provide us with all facilities reasonably required for inspection and testing.
3.5. Rejection. If as a result of inspection or testing we are not satisfied that the goods will comply in all respects with this order or the governing formal agreement (including without limitation all specifications, instructions, designs or patterns supplied by us) then we will be entitled, in addition to any other right or remedy and without liability under this order, to reject or refuse to accept such goods. Furthermore, the goods will be subject to final inspection by us at any time within 90 days after delivery to us in accordance with the terms of this order, or the governing formal agreement, or such longer time as may be reasonable.
3.6. Cargo Insurance. If the designated Incoterm requires cargo insurance, you must purchase cargo insurance under Institute Cargo Clauses, Clause A (formerly "all risks") of the International Underwriting Association of London, or its successor. If you do not purchase insurance under Clause A, you will bear the risk of loss for all risks that are covered under Institute Cargo Clauses, Clause A.
3.7. Shipping Instructions. Ship only the quantities specified in this order. Do not over-ship or under-ship. Ship your goods for arrival on the delivery date specified in this order. Enclose a packing slip with each shipment and print this order number on the packing slip and all invoices. Advise us immediately if you are unable to ship so that your goods arrive on the specified delivery date. In all shipments, you must comply with the Customs Clearance Documentation located at http://www.seagate.com/legal-privacy/encrypting-drive-export-import-compliance/customs-clearance-documentation, including any applicable country specific requirements identified in the Customs Clearance Documentation, which is also available from us upon request and incorporated into this order.
3.8. Overshipments and Early Shipments. If you ship more goods than ordered, or if you deliver the goods earlier than ordered, we may purchase some or all of the goods or return some or all of the goods at your risk and expense.
3.9. Duty Drawbacks. We reserve the right to any duty drawbacks or similar applicable inward processing relief schemes. You will provide us with any documents necessary to prove importation and to claim duty drawbacks or similar relief.
4. PACKAGING AND LABELLING
4.1. Packaging. You must package all goods in accordance with good commercial practice and in a manner acceptable to common carriers for shipment at the lowest rate for the goods involved, and adequate to ensure safe arrival of the goods to their destination.
4.2. Labelling. Your packaging must be labelled with this order number, the date of shipment, and the names of any consignee and consignor. You must include an itemized packaging sheet with each shipment. You must mark each package with any required handling and shipping information, and you must comply with any country-of-origin markings to satisfy the customs authorities of the destination country.
5. CANCELLATION AND RESCHEDULING
5.1. Cancellation for Default. Time is of the essence under this order. We may cancel this order in whole or in part if you do not deliver the goods or perform the services in full conformance with the warranties in Section 6 and within the time specified in this order. If we cancel this order for default and it is later determined that you were not in default, your rights will be construed as if the cancellation was for convenience under section 5.2.
5.2. Cancellation for Convenience. We may cancel this order, in whole or in part, at any time for convenience. If we give you 15 or more days' notice of cancellation for convenience, we will not have any obligation to you whatsoever. If we give you less than 15 days' notice, we will reimburse your actual out-of-pocket costs incurred as a direct result of the cancellation, to the extent that the costs are not capable of being mitigated. To be reimbursed, you must submit your request for reimbursement within 30 days after the notice of cancellation. We have the option to purchase any work in progress in any canceled order, including any raw materials you may have obtained to use in your work. The price to purchase your work in progress will be a prorated price based on the percentage of work remaining to be completed. The price to purchase any raw materials will be your actual cost. You are not entitled to any other remedy for cancellation of this order except as provided in this section.
5.3. Rescheduling. Seagate may reschedule your delivery of goods or performance of services at any time without liability. The new date for delivery or performance will not be more than 180 days beyond the originally scheduled date.
6.1. Warranty Period. All warranties under this order continue for five years after the date of delivery to us, unless a different warranty period is stated on the face of this order.
6.2. Warranties Regarding Goods. You make the following warranties to us regarding all goods you provide under this order:
6.3. Warranties Regarding Services. You make the following warranties to us regarding all services you provide under this order:
6.4. Other Warranty Terms. The warranties listed above are in addition to any other warranties expressly made by you or implied or imposed by law. All warranties will survive inspection and payment by us and are assignable to our successors and assigns.
6.5. Warranty Remedies. If any goods or services do not meet the warranties, we may, at our option, and at your cost,
6.6. Repaired or Replacement Warranty Period. Any repaired or replacement goods provided by you will be warranted for the remainder of the original warranty period.
6.7. Remedies Nonexclusive. The remedies listed above are in addition to any other remedies available to us in law or equity. Our review and approval of your materials or designs will not relieve you of the warranties.
7. LIMITATION OF LIABILITY
7.1. Limitation of Amount of Liability. Our maximum liability to you related to this order, whether arising in contract, tort (including negligence) or otherwise, will not exceed the total price stated on this order.
7.2. Limitation of Type of Liability. We will not be liable to you for loss of profit, loss of income, loss of business, loss of revenue, loss of goodwill or for any indirect, special, incidental, consequential, or punitive damages, however caused, regardless of whether we are advised of the possibility of such damages.
7.3. No Personal Liability. Our officers, directors, employees, affiliates and other agents are not personally liable to you under this order, and will not be liable to you under any claim or action related to this order.
7.4. Purpose. The purpose of this section is to limit our potential liability arising out of this order, and that allocation of risk is reflected in the prices. This Section 7 will apply despite the failure of any remedy of its essential purpose.
7.5. Exclusions. The limitations of liability in this order do not exclude or limit liability to the extent that it may not be excluded or limited as a matter of law.
8. INTELLECTUAL PROPERTY RIGHTS
8.1. Pre-existing Intellectual Property. We own all intellectual property rights related to any information or items we provide you. You may not use our intellectual property except to benefit us.
8.2. Developed Intellectual Property. The goods or services ordered are specially ordered or commissioned by us and are works made for hire. You grant to us, without further consideration, all rights and interest in any intellectual property developed by you during your performance of any services or delivery of any goods under this order. You must immediately disclose to us any intellectual property developed by you arising out of your performance of the services or delivery of the goods. You will assign to us all interest in any intellectual property made, conceived or reduced to practice by you solely or in collaboration with others during the course of performance of this order. You will assist us in enforcing our interest in the intellectual property. You will cooperate in the execution of any instruments that are necessary or useful in order for us to apply for and obtain intellectual property protection.
8.3. Intellectual Property Indemnification. You will defend and indemnify us and our directors, officers, employees and affiliates against any claim or action alleging that your goods or services infringe or violate a patent, copyright, trademark, trade dress, trade secret, or any other contractual right, proprietary right or intellectual property right of any third party.
9. CONFIDENTIALITY; DATA PROTECTION AND SECURITY
9.1.1. Confidential Information. Any information regarding our intellectual property is our confidential information. The existence of this order and the information in this order is our confidential information. Any other information that we provide to you that is identified as "confidential," or is identified with similar language, or which under the circumstances surrounding disclosure ought to be treated as confidential, is our confidential information.
9.1.2. Nondisclosure. Except as required by law, you may neither disclose our confidential information to any third party nor use our confidential information for any purpose other than your performance under this order without our prior written consent. You must segregate our confidential information from all other information. You must destroy or return our confidential information to us upon our request.
9.2. Data Protection and Security. If this order allows for the processing of personal information, including access and transfer, you must comply with our Data Protection and Security Exhibits, located at https://www.seagate.com/legal-privacy/electronic-and-physical-security-and-data-protection/, which is also available from us upon request and incorporated into this order.
10. INDEMNIFICATION AND INSURANCE
10.1. General Indemnification. You will defend and indemnify us and our directors, officers, employees and affiliates against any claim or action arising out of your performance of this order.
10.2. Insurance. You will maintain general commercial liability insurance, including public liability and product liability, in the minimum amount of £1,000,000 combined single limit for personal injury and property damage. If you have employees, you must maintain employer's liability in a minimum amount of £1,000,000 per occurrence and workers' compensation insurance in accordance with law. Your insurance must include a waiver of the insurer's subrogation rights against Seagate, unless prohibited by law.
11. DISPUTE RESOLUTION
11.1. Good-Faith Negotiation Followed by Mediation. The parties will attempt to resolve any dispute relating to this order through good faith, informal efforts. Any dispute the parties are unable to resolve between themselves will be submitted to mediation before a mutually agreed mediator of Judicial Arbitration And Mediation Services (JAMS) to be scheduled within 10 business days. Mediation will be conducted at a JAMS facility in Santa Clara County, California. The parties will bear their own costs.
11.2. Exclusion for Equitable Relief for Confidentiality. We may seek equitable relief at any time to enforce the provisions of Section 9 of this order.
11.3. No Action Pending Mediation. Except for claim for equitable relief, neither party may bring any other action until completion of mediation. Any court of competent jurisdiction may enforce the provisions of this section, and the party seeking enforcement will be entitled to an award of attorney's fees and costs to be paid by the party against whom enforcement is ordered.
12.1. Independent Contractor Status; Governing Law; Venue; Attorneys’ Fees. You and your employees are independent contractors and not employees, agents, joint venturers or partners of Seagate. This order will be construed in accordance with, and governed exclusively by, the laws of the State of California, U.S.A., without regard to its conflict of laws rules. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this order. You irrevocably submit to the personal and exclusive jurisdiction of the courts located within the County of Santa Clara, California, U.S.A. You waive all defenses of lack of personal jurisdiction and forum non-conveniens. In any action or suit to enforce any right or remedy under this order or to interpret any provision of this order, the prevailing party will be entitled to recover its costs, including reasonable attorneys’ fees.
12.2. Compliance With Laws. You must comply with all requirements of applicable laws in performing your obligations under this order, including without limitation those governing environment, health and safety, and labor and employment practices. You will also maintain all governmental approvals, licenses, registrations and the like as may be necessary or advisable for performing your obligations under this order. Upon request, you will certify that you comply with all applicable laws and regulations. We may audit you to confirm your compliance with this section.
12.3. International Trade Compliance. The goods or services licensed or sold under this order, and the transaction contemplated by this order, which may include technology and software, are subject to the customs and export control laws and regulations of the United States ("U.S.") and may also be subject to the customs and export laws and regulations of the country in which the goods are manufactured or received. Further, under U.S. law, the goods shipped under this order may not be sold, leased or otherwise transferred to restricted countries, or used by a restricted end-user or an end-user engaged in activities related to weapons of mass destruction including, without limitation, activities related to designing, developing, producing or using nuclear weapons, materials, or facilities, missiles or supporting missile projects, or chemical or biological weapons. You acknowledge that it is your responsibility to comply with and abide by the laws and regulations referenced in this section, and that any person or entity to which you ask Seagate to send product has also been made aware of the associated export controls.
12.4. Assignment. You may not assign your rights or delegate your duties under this order to any third party without our prior written consent.
12.5. Severability; Survival. Sections 7, 8, 9 and 10.1 are material to this order, are not severable, and will survive termination or cancellation of this order. Section 6 will survive for 6 years after delivery of goods or completion of services. If any term or provision of this order is or becomes invalid under any applicable law, then the remainder of this order will not be affected thereby and the remaining terms and provisions of this order will remain in effect as if the invalid portion were not a part of this order.
(UK, Rev 01 April 2011)