Purchase Order Terms and Conditions
Purchase Order Terms and Conditions
1. Acceptance of Terms and Conditions. Unless there is a current signed agreement between the parties covering the purchase and sale of the Products, these Purchase Order Terms and Conditions (“Terms and Conditions”) shall govern all purchases by Aurora Innovation, Inc. (“Aurora”) from you (“you” or “Seller”) of products, software, materials and/or services (collectively, “Products”) described in purchase orders provided by Aurora (“Purchase Order(s)”) and supersede any terms and conditions provided by Seller. Any offer by Aurora to purchase the Products from you is expressly conditioned upon your acceptance of these Terms and Conditions and the additional terms set forth in the Purchase Order. If you ship, perform or otherwise provide any Products or otherwise indicate your acceptance of a Purchase Order, you accept these Terms and Conditions and the terms of the Purchase Order without qualification. Aurora expressly rejects any additional or different terms or conditions provided or posted by you, at any time and in any manner, in relation to any Products or Purchase Orders (including any Seller clickwrap, clickthrough, shrinkwrap, online terms, quotes, invoices, bills of lading or acknowledgment). Without limiting the foregoing, if any unsigned terms provided or posted by you are found to be binding upon the parties, in the event of a conflict between these Terms and Conditions and such unsigned terms provided or posted by you, the parties expressly consent and agree these Terms and Conditions shall prevail.
2. Price. Product prices shall not exceed the prices in the Purchase Order without Aurora’s written consent. Prices include all taxes applicable to the supply of Products, and all taxes shall be shown separately on Seller’s invoice. No costs, expenses, fees or other charges shall be assessable or chargeable by Seller against Aurora except and unless set forth in the Purchase Order and/or approved in writing by Aurora.
3. Payment. Aurora is not required to pay for Products until Aurora receives: (a) Products that meet all requirements of these Terms and Conditions; and (b) a correct invoice, appropriate shipping documents and any related Product materials (collectively “Sale Documents”). Unless otherwise set forth in the Purchase Order, Aurora shall make payments pursuant to these Terms and Conditions within 30 days after receipt of the conforming Products and all Sale Documents, less any amounts that Aurora disputes in good faith.
4. Delivery. Seller shall furnish sufficient labor, material, and equipment to ensure compliance with the established delivery or performance dates set forth in the applicable quotation or other documentation provided by Seller (“Delivery Date(s)”), all at no additional charge to Aurora. If Seller reasonably anticipates or knows that it will not or may not be able to meet such Delivery Date(s), Seller shall promptly provide Aurora with written notice of such anticipated or known delay and reasonably cooperate with Aurora to address any such delay. If Seller does not deliver or, in the case of services, perform the Products in accordance with these Terms and Conditions by 30 days after the applicable Delivery Date, and Seller and Aurora fail to agree on an alternative delivery plan within 30 days after the Delivery Date, Aurora may cancel the Purchase Order at no cost to Aurora and Seller shall refund any amounts prepaid by Aurora for Products not timely delivered or performed by Seller.
5. Shipping. Seller shall package, load and ship the Products in accordance with relevant industry practices, including in a manner sufficient to prevent damage to or loss of the Products during shipment. Shipments must equal quantity ordered, unless otherwise agreed by Aurora in writing. Shipping terms shall be DDP (Incoterms 2010) unless otherwise set forth in the Purchase Order. Notwithstanding anything to the contrary, Seller shall be responsible for all export and import clearances and any related duties or tariffs related to its delivery of the Products, and Seller shall be the importer of record for all Products ordered by Aurora.
6. Risk of Loss. Seller shall bear the risk of loss until the Products are delivered by Seller to the destination identified in the Purchase Order. If freight regulations covering the Products transported by common carrier establish a maximum limit on the carrier’s liability for loss or damage suffered in transit, Seller shall be liable to Aurora for any loss or damage in excess of such maximum limit up to the full price of the Products. For the avoidance of doubt, Seller shall bear the risk of loss of the Products at all times while Seller is storing the Products for Aurora, even if Aurora has already paid for the Products.
7. Changes. Seller may not cancel any accepted Purchase Order or make any changes to the quantity or specifications of the Products, except pursuant to a written change order setting forth in detail any changes (“Change Order”). A Change Order shall be binding on both parties only if Seller and Aurora both sign the Change Order approving the changes. Seller will provide Aurora with at least six months’ prior written notice if it elects to discontinue the production or sale of any Products. In such an event, Seller shall provide Aurora with the opportunity to place a final order for the applicable Products prior to such discontinuation.
8. Specifications and Quality Standards. Seller shall supply the Products in conformance with the product, manufacturing, labeling, quality, and testing specifications agreed by Aurora and Seller and that Seller generally publishes (to the extent such published specifications are not inconsistent with the specifications agreed between Aurora and Seller) (“Specifications”) and shall complete such quality assurance processes as required by the Specifications. In addition, Seller shall ensure that the Products meet or exceed all applicable government, regulatory and industry standards, and Seller’s own internal quality standards (collectively, “Quality Standards”). Any changes to any Specifications or Quality Standards must be set forth in a binding Change Order.
9. Acceptance. Even if Aurora has already paid for the Products, Aurora shall have a reasonable time (not less than 30 days) from receipt or performance of the Products to inspect the Products and submit claims of quality, quantity, damage or other non-compliance to Seller. Aurora may return to Seller, at Seller’s expense (for transportation both ways), any Products delivered that do not meet Specifications or Quality Standards. Seller acknowledges and agrees that any returns of Products to Seller hereunder shall be made EXW (Incoterms 2010).
10. Warranty. Seller warrants to Aurora, its affiliates and customers that all the Products shall, for a period of one year after acceptance by Aurora: (a) be free from material defects in design, workmanship and materials; (b) conform with the Specifications and the Quality Standards; (c) in the case of services, be provided in a professional and workmanlike manner in accordance with relevant industry practices; (d) be free and clear of all liens, security interests, claims and encumbrances by the Delivery Date; and (e) comply with all other requirements of applicable law and these Terms and Conditions. Seller shall, to the extent it is contractually permitted to do so, pass through or assign to Aurora the benefits of manufacturers' or suppliers' warranties and guarantees (including extended) for material or equipment incorporated into the Products, and shall perform its responsibilities so that such warranties or guarantees remain in full force and effect.
11. Breach of Warranty. Seller shall correct any warranty failure at its sole expense, as directed by Aurora, by promptly: (a) repairing, replacing or re-performing the non-conforming Products (and correcting any Sale Documents); or (b) refunding to Aurora any portion of the purchase price paid by Aurora under these Terms and Conditions and canceling any further portions due for non-conforming Products.
12. Publicity. Seller shall not disclose the existence or terms of these Terms and Conditions, disclose Aurora’s purchase or use of the Products, or use Aurora's images, name or trademarks in any publicity or advertising without Aurora's prior written consent.
13. Intellectual Property. Each party owns or has a license to use its respective patents, copyrights, trademarks, design rights, trade secrets, know-how and other intellectual property rights created, conceived, reduced to practice or developed by such party independent of any Purchase Order and the other party’s personnel, resources, Confidential Information (“IP Rights”), and each party reserves all of its IP Rights not expressly granted to the other party under these Terms and Conditions (or any applicable Purchase Order). Seller hereby grants to Aurora a worldwide, irrevocable, non-exclusive, fully-paid, royalty-free, perpetual, and transferable and sublicensable (solely to Aurora’s assignees and end customers) right and license to use (and for Aurora’s contractors to use on Aurora’s behalf) any of Seller’s IP Rights as reasonably necessary to utilize the Products substantially as contemplated in Seller’s documentation (or any applicable Purchase Order). Seller shall not modify, enhance or create any improvements or derivative works of any Aurora-provided materials without Aurora’s prior written consent which consent may be provided subject to limitations and/or conditions, and, as between Seller and Aurora, Aurora shall own (and Seller hereby assigns to Aurora all rights, title and interest in and to) any such modifications, enhancements, improvements or derivative works.
14. Confidentiality. Unless otherwise agreed to in a signed non-disclosure agreement between the parties, “Confidential Information” shall mean all information disclosed by either party to the other party, directly or indirectly, in writing, orally, or by inspection of tangible objects (including documents, prototypes, samples, plant, and equipment), which is designated as “Confidential,” “Proprietary,” or some similar designation or which should reasonably be understood by the recipient as being confidential in light of the circumstances of the disclosure or nature of the information. Confidential Information includes information that is owned by the disclosing party’s subsidiaries or disclosed to the disclosing party by third parties. Confidential Information shall not include information which: (a) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the possession of the receiving party at the time of disclosure by the disclosing party and not subject to any obligation of confidentiality, as shown by the receiving party’s files and records; (d) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession. The receiving party shall use commercially reasonable efforts to prevent any unauthorized use or disclosure of the Confidential Information, which shall include using at least the same degree of care the receiving party uses to protect its own information of a similar nature. The receiving party may only disclose Confidential Information to its employees who have a legitimate “need to know,” have been advised of these confidentiality obligations, and are bound to obligations of confidentiality no less stringent than those set out herein. A party may disclose the other party’s Confidential Information if required by law so long as the receiving party gives the disclosing party prompt written notice of the requirement prior to the disclosure and assistance in obtaining an order protecting the information from public disclosure. With respect to any Confidential Information that constitutes a trade secret under applicable law, the obligations under this Section shall survive until such Confidential Information loses its trade secret protection other than due to an act or omission of the recipient.
15. Indemnity. Seller shall at its own expense defend, indemnify and hold Aurora, its affiliates and customers, and their respective employees, directors, agents and contractors, successors and assigns harmless from any liabilities, costs and expenses (including attorney’s fees and expenses), from any claims, actions, demands or other legal proceedings arising out of or related to (a) Seller’s gross negligence, willful misconduct or breach of these Terms and Conditions, (b) the Products or their use or sale infringing any patent, copyright, trade secret or other intellectual property rights, or (c) the failure of the Products to meet Specifications or the Quality Standards.
16. Insurance. Seller shall procure and maintain insurance with financially sound and reputable insurance companies covering such risks and amounts as is customarily maintained by companies engaged in the same or similar business practice as Seller.
17. Limitation of Liability. EXCLUDING A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BREACH OF THE CONFIDENTIALITY REQUIREMENTS OR AS SET FORTH IN THE INDEMNIFICATION OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM TRANSACTIONS BETWEEN THE PARTIES.
18. Compliance with Laws. Seller shall comply with all applicable laws, regulations and orders, including all anti-bribery, anti-slavery, data privacy, environmental, health, safety, child welfare, wage and hour, labor and other workplace laws and regulations in all jurisdictions applicable to the Products, and shall obtain all necessary permits and approvals as necessary in connection with its sale of the Products and performance of these Terms and Conditions. Without limitation, Seller shall comply with U.S. Foreign Corrupt Practices Act, as amended, and all applicable U.S. export control laws and regulations, including the requirements of the Arms Export Control Act, 22 U.S.C. 2751- 2794; the International Traffic in Arms Regulation (ITAR), 22 C. F. R. 120 et seq.; the Export Administration Act, 50 U.S.C. app. 2401-2420; and the presence and country of origin of any and all conflict minerals in the Products in accordance with the requirements of the Dodd-Frank Act of 2010, and any similar law arising under any other jurisdiction. Seller shall provide Aurora with the correct Export Classification Control Number, Dual Use Number, or any other applicable export codes before delivering the applicable Products to Aurora.
19. Termination. Aurora may terminate these Terms and Conditions, or any Purchase Order, in whole or in part, at any time by written notice if: (a) Seller breaches these Terms and Conditions; (b) Seller becomes insolvent or makes an assignment for the benefit of creditors, commits an act of bankruptcy or files or has filed against it a petition in bankruptcy or reorganization proceedings; or (c) other than with respect to Products shipped or Purchase Orders accepted by the Seller, for any reason at any time by 30 days’ prior written notice.
20. Survival. All provisions of these Terms and Conditions, which by their nature should survive, shall survive any termination or expiration of these Terms and Conditions, including any confidentiality, indemnification, or liability obligations.
21. Independent Contractors. Seller, its employees, permitted subcontractors and agents shall at all times be independent contractors with respect to these Terms and Conditions, and shall not be deemed employees or agents of Aurora. None of them shall have the express or implied right to bind Aurora.
22. Assignment. Seller shall not assign or subcontract any or all of its rights or duties under these Terms and Conditions without Aurora’s prior written consent. Aurora may assign any rights or duties under these Terms and Conditions without the consent of Seller. These Terms and Conditions shall inure to the benefit of and be binding upon Aurora and Seller and their respective successors and permitted assigns.
23. Waiver. Any waiver by Aurora of any rights or obligations under these Terms and Conditions must be in writing and signed by Aurora, and any such waiver shall not apply to any subsequent rights or obligations.
24. Remedies. The rights and remedies of Aurora provided under these Terms and Conditions are not exclusive and are in addition to any other rights and remedies provided at law or in equity.
25. No Inspection. Seller shall not have any rights to audit or inspect (whether directly or indirectly) any facilities, books, records, personnel or other resources of Aurora or any of its affiliates or subcontractors.
26. Notices. Any notices required or permitted under these Terms and Conditions shall be in writing and delivered to the address set forth in the Purchase Order by hand or sent by (a) recognized overnight courier, (b) confirmed electronic mail, or (c) registered or certified mail, postage prepaid, return receipt requested, in each case with a copy to email@example.com. Notices shall be deemed given (i) when delivered by hand, (ii) two days after deposit with a recognized overnight courier, (iii) upon confirmed electronic mail transmission, or (iv) on the delivery date indicated in the return receipt for registered or certified mail. Either party may change its contact information by written notice in accordance with this Section 26.
27. Governing Law. These Terms and Conditions shall be governed by the laws of the State of California without regard to conflict of laws principles and the exclusion of the U.N. Convention on Contracts for the International Sale of Goods. Aurora shall have the right to seek injunctive relief, in addition to any other remedies available to Aurora under these Terms and Conditions, at law or in equity.
28. Arbitration. Except for Aurora’s right to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any controversy or claim arising out of or relating to these Terms and Conditions, or the breach thereof, shall be settled by confidential, binding arbitration administered by the American Arbitration Association in Santa Clara County, California under its Commercial Arbitration Rules and pursuant to the Expedited Procedures thereunder by an arbitrator mutually agreed upon by the parties. In the event the parties cannot agree on a single arbitrator, each party shall select an arbitrator, and a third arbitrator shall be selected by agreement of the two arbitrators selected by the parties. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
29. Severability. If any provision of these Terms and Conditions is held to be invalid or unenforceable, the other provisions shall not be affected.
30. Language. Any use of the word “including” in these Terms and Conditions means “including without limitation.”
31. Agreement. These Terms and Conditions and the Purchase Order constitute the entire agreement between the parties relating to the Products. Any amendment to these Terms and Conditions or the Purchase Order must be in writing explicitly referencing these Terms and Conditions and signed by Aurora.
October 2020 Version