Unless you (“Seller”) have entered into a signed master agreement with Tier Mobility SE, emTransit B.V. or one of their affiliates (“Dott”) that would, by its terms, govern Dott’s purchases from Seller, these terms and conditions together with the details contained in and any documents referenced by the Purchase Order are the exclusive binding agreement between the parties (“Agreement”) covering the purchase of the products and services (“Goods”) detailed in the Purchase Order. This Agreement is accepted by written acknowledgment and/or Seller’s commencement of performance. THE PURCHASE ORDER CAN BE ACCEPTED ONLY ON THE TERMS SET OUT IN THE AGREEMENT. ADDITIONAL OR DIFFERENT TERMS PROPOSED BY SELLER WILL BE INAPPLICABLE UNLESS ACCEPTED IN WRITING BY DOTT. ACCEPTANCE OF THE GOODS DELIVERED UNDER THIS AGREEMENT SHALL NOT CONSTITUTE ACCEPTANCE OF SELLERS TERMS AND CONDITIONS. No change, modification or revision of this Agreement shall be effective unless in writing and signed by Dott duly authorised purchasing representative.
Seller warrants that the price to be charged for Goods does not exceed the lowest price charged to any other customer for the same or comparable Goods. In the event of any price reductions during the effective period covered by this Agreement which apply to Goods, such price reductions shall automatically reduce the price of the unshipped Goods.
Payment of invoices shall not constitute acceptance of the Goods. Dott may at any time set off any amount owed by Dott to Seller against any amount owed by Seller or any of its affiliated companies to Dott. Unless otherwise specified, all applicable sales taxes should be added to Sellers invoice as a separate line item. Dott will make payment of valid invoices within sixty (60) days of the end of the month of receipt provided that, under no circumstances shall payment be made prior to the delivery to and acceptance of the Goods by Dott. Invoices must be submitted to invoices@ridedott.com for payment and include a reference to Dott’s Purchase Order number.
a) Unless otherwise specified in this Agreement, all Goods shall be packed, marked and otherwise prepared for shipment in a manner which is: (i) in accordance with good commercial practice, (ii) acceptable to common carriers for shipment at the lowest rate for the particular product and in accordance with ICC regulations and (iii) adequate to ensure safe arrival of the Goods and for storage and protection against weather. Seller shall mark all containers with necessary lifting, handling and shipping information and also Purchase Order number, date of shipment and the name of the consignee and consignor. An itemised packing sheet must accompany each shipment.
b) Title to and responsibility for the Goods passes to Dott upon safe receipt at Dott’ premises.
a) Seller warrants that all Goods are free from defects in workmanship, material and design, and that they comply with this Agreement and with drawings, specifications, and samples applicable. Seller warrants that all Goods are of satisfactory quality and are fit and suitable for the purpose designated by Dott. Seller warrants all Goods against defects in material and workmanship for a period of two (2) years from the time that the Seller’s product is placed in complete and full-time operation. Prior testing periods shall not start the running of the two (2) year period. Seller agrees to repair all Goods or replace any necessary parts at no charge to Dott during two (2) year period. The two (2) year period will resume when the products are again in complete and full-time operation. The warranty shall begin from the date of acceptance of products into full-time operation (including software). These warranties are in addition to all other warranties, express or implied, and shall survive delivery, inspection, acceptance or payment by Dott and shall run to Dott, its successors, assigns, customers and users of its Goods.
b) Seller warrants that services shall be performed in a good, professional and workmanlike manner, with the degree of skill and care that is required by current professional procedures found in the industry and that the performance of services will not conflict with or be prohibited in any way by, any other agreement or statutory restriction to which Seller is bound.
c) If any Goods delivered hereunder do not meet the warranties specified herein or otherwise applicable, Dott may at its election: (i) require the Seller to promptly correct, at no cost to Dott, any defective or non-conforming Goods by repair or replacement, at the location as specified by Dott, or (ii) return such defective or non-conforming Goods at Seller’s expense to the Seller, and recover from the Seller the price for the Goods. The foregoing remedies are in addition to all other remedies in law or in equity and shall not be deemed to be exclusive.
d) Dott’ approval of the Seller’s product or design shall not relieve Seller of the warranties.
All Goods shall be subject to inspection and test by Dott at any time. No inspection or test made prior to final acceptance shall relieve the Seller from responsibility for defects or other failure to meet the requirements of this Agreement. In case any Goods are defective in material or workmanship, or otherwise not in conformity with the requirements of this Agreement, Dott shall have the right (without prejudice to other rights and remedies available at law) either to reject it, or require its correction. Goods which have been rejected or required to be corrected shall be promptly replaced or corrected by, and at the expense of, the Seller. Notwithstanding any prior inspection or payment hereunder, all Goods shall also be subject to final inspection and acceptance at Dott’ location within a reasonable time after delivery.
Dott may at any time make changes in any one or more of the following:
a) the Goods
b) applicable drawings, designs or specification; and/or
c) method of shipment or packing; and/or
d) place or time of delivery.
Nothing in this clause shall excuse Seller from proceeding with the Agreement as changed or amended.
a) At any time prior to delivery, Dott may terminate work under this Agreement in whole or in part, by written notice to Seller.
b) Upon such termination, Seller will: (i) stop all work under this Agreement, place no further Agreements for materials to complete the work, stop all shipments of materials ordered and attempt to return all materials which have been delivered. Seller shall use its best efforts to mitigate damages by attempting to locate alternative customers for any Goods completed or materials purchased to fulfill any cancelled orders; and (ii) refund any pre-payments made by Dott within five (5) days of receipt of such notice
c) With respect to any Goods and materials not so sold, Dott and Seller shall negotiate reasonable termination charges based on actual cost, supported by documentation. For the purpose of the Agreement, said reasonable costs are defined as the cost of unique materials which (i) have been procured specifically for Goods built for Dott, and (ii) cannot be incorporated into Seller’s standard Goods or otherwise utilised. Within one (1) month after such termination, Seller may submit to Dott its written claim (fully supported by documentary evidence) for termination charges, in the form and with the certifications prescribed by Dott. Failure to submit within one (1) month will constitute a waiver of all claims and a release of all Dott liability arising out of the termination.
Dott may terminate this Agreement (a) if Seller breaches a material provision of the Agreement and fails to remedy such breach within ten (10) days of receipt of written notice of such breach; or (b) if Seller is unable to pay its debts as they fall due, ceases to carry on business, has a receiver, liquidator, administrator or similar person appointed to the Sellers affairs under the laws of any jurisdiction, or has a calling of a meeting of creditors or any reason; or (c) immediately if Seller breaches the Supplier Code.
The Seller shall effect and maintain adequate insurance for the following: (i) Comprehensive General Liability (including product liability); (ii) Errors and Omissions; (iii) Workers’ Compensation Statutory Limits; and (iv) Employer’s Liability. At Dott’ request, the Seller will provide Dott with the current certificates of insurance.
The Seller, as part consideration for this Agreement and without further cost to Dott, hereby grants and agrees to grant to Dott and to the extent requested by Dott, an irrevocable, non-exclusive, royalty-free right and license to use, sell, manufacture and cause to be manufactured, products embodying any and all inventions and discoveries made, conceived or actually reduced to practice in connection with the performance of this Agreement.
a) Seller shall indemnify Dott, its agents, customers, successors and assigns against any loss, damage and liability (including costs and expenses) for actual or alleged infringement of any patent, copyright or trademark arising out of the use or sale of the Goods by Dott, its agents or customers – provided, however, that Dott must notify Seller of any suit, claim or demand involving such infringement and permit Seller to defend against or settle the same. If any injunction is issued as the result of any such infringement, Seller agrees, at Dott option and without prejudice to other rights or remedies available to Dott under applicable law, to (i) refund to Dott the amounts paid to Seller for the Goods covered by the injunction, or (ii) furnish Dott with acceptable and non-infringing Goods.
b) Seller shall indemnify Dott against any and all liability expense resulting from any alleged defects in the Goods, whether latent or patent, including but not limited to allegedly improper construction and design, or from the failure of the Goods to comply with specifications.
c) Seller shall indemnify Dott, its agents, customers, successors and assigns against any loss, damage or liability caused directly or indirectly by any act or omission of the Seller, its agents, employees or subcontractors.
d) Seller warrants that there are no liabilities for royalties, mechanics liens or other encumbrances on the Goods supplied and agrees to indemnify Dott against any such liabilities.
All Goods delivered under this Agreement are subject to all relevant export control laws and export/import regulations. Seller agrees to comply strictly with all such laws and regulations and acknowledges that it has the responsibility to obtain such licenses to export, re-export or import as may be required.
Work Product shall include without limitation, all designs, discoveries, creations, works, devices, masks, models, work in progress, service deliverables, inventions, products, developments, drawings, notes, documents, photographs, printing, business processes, information and materials made, conceived or developed by Seller alone or with others which result from or relate to any services performed in relation to this Agreement. Standard Goods manufactured by Seller and sold to Dott without having been designed, customised or modified for Dott do not constitute Work Product. All Work Product shall at all times be and remain the sole and exclusive property of Dott. Seller hereby agrees to irrevocably assign and transfer to Dott and does hereby assign and transfer to Dott all of its worldwide right title and interest in and to the Work Product.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL DOTT’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID OR PAYABLE BY DOTT TO SELLER FOR THE APPLICABLE GOODS PROVIDED UNDER THIS AGREEMENT NOR WILL DOTT OR ITS RELATED LEGAL ENTITIES BE LIABLE FOR ANY LOST REVENUES, LOST PROFITS, INCIDENTAL, DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF.
Seller agrees to comply with Dott’s Supplier Code of Conduct available at: https://ridedott.com/code-of-conduct (“Supplier Code”)
17. GENERAL
a. The laws of the Netherlands govern this Agreement and the parties hereby submit to the exclusive jurisdiction of Amsterdam, the Netherlands. Any dispute, claim or controversy arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the arbitrability of any such dispute, claim or controversy, shall be referred to and finally resolved by arbitration in Amsterdam, the Netherlands, by a sole arbitrator appointed in accordance with the Rules of Arbitration of the International Chamber of Commerce (“ICC”) in force at the time of reference to arbitration, which rules are deemed to be incorporated by reference in this clause. The language of the arbitration shall be English.
b. To the extent allowed in the applicable jurisdiction, the United Nations Convention on Contracts for the International sale of goods and its implementing legislation will not apply to this Agreement.
c. Neither of the parties will be responsible for any failure to meet any obligations (except payment obligations) due to matters beyond its reasonable control provided reasonable efforts have been made to perform them.
d. The Seller must not assign, or otherwise transfer any of the Seller’s rights under this Agreement without Dott’ prior written consent.
e. The Seller may not use subcontractors to perform any of the Seller’s obligations, without Dott’ written consent.
f. Each party is an independent contractor and there is no actual or deemed partnership, franchise, joint venture, agency, employment or other fiduciary relationship between the parties. The Seller is solely responsible for the Seller’s own taxes, withholding and other similar statutory obligations relating to this Agreement.
g. Rights and obligations under this Agreement, which by their nature should survive the termination or expiry, will remain in effect after termination.
h. If either of the parties fails to promptly exercise any contractual right, this does not of itself mean that the right has been waived. For a waiver of a right to be valid, it must be written and it will not give rise to an ongoing waiver or any expectation that the right will not be enforced, unless it is expressly stated to do so.
i. This Agreement is the entire agreement relating to its subject matter and supersedes all prior or contemporaneous oral or written communications, understandings, proposals of the parties relating to the subject matter of this Agreement.
j. It is not intended that any third party may enforce any benefit conferred by this Agreement.