Purchase Order Terms and Conditions
1. Definitions
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person.
“Background Intellectual Property Rights” means Presso’s Intellectual Property or Service Provider’s Intellectual Property, as applicable, except for any Foreground Intellectual Property Rights.
“Business Day” means any day except Saturday, Sunday or any other day on which commercial banks located in Atlanta, Georgia, are authorized or required by Law to be closed for business.
“Presso Parties” means Presso, its Affiliates, customers, subcontractors and successors and assigns, and each of their respective Representatives.
“Presso’s Intellectual Property” means all Intellectual Property Rights owned by or licensed to Presso, including all Foreground Intellectual Property Rights and any of Presso’s Background Intellectual Property Rights used in the design, production, and manufacturing of the Goods.
“Claim” means any action or lawsuit brought against a Person entitled to indemnification under 9.
“Control” (and with correlative meanings, the terms “Controlled by” and “under common Control with”) means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of another Person, whether through the ownership or voting securities, by contract, or otherwise.
“Delivery Date” means the delivery date for Goods ordered hereunder that is set forth in this Purchase Order.
“Delivery Location” means the street address for delivery of the Goods specified in this Purchase Order.
“Encumbrance” means any charge, claim, community property interest, pledge, condition, equitable interest, lien (statutory or other), option, security interest, mortgage, easement, encroachment, right of way, right of first refusal, or restriction of any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership.
“Equipment” means, collectively, “equipment” (as that term is defined in UCC Section 9-102(a)(33)) that is used in the manufacture, production or assembly of Goods by Service Provider, and all machinery, equipment, Tooling, furnishings and fixtures (as such terms are defined in UCC Section 9-102) now owned or hereafter acquired by Service Provider, of any kind, nature or description, as well as all (a) additions to, substitutions for, replacements of and accessions to any of the foregoing items, (b) attachments, components, parts (including spare parts) and accessories installed thereon or affixed thereto, and (c) Intellectual Property Rights in connection with the foregoing.
“Foreground Intellectual Property Rights” means any and all of the Intellectual Property Rights developed with respect to, or for incorporation into, the Goods, the Specifications, and any other materials, content, information or Intellectual property Rights that are either developed by Presso alone, by Presso and Service Provider jointly or by Service Provider alone as requested by Presso in connection with this Purchase Order.
“Goods” means the goods described in the Specifications. Presso may update the Goods from time to time in its sole discretion. Presso to advise Service Provider 30 days prior to any schedule changes.
“Governmental Authority” means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.
“Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to (a) Patents; (b) Trademarks; (c) internet domain names, whether or not Trademarks, registered by any authorized private registrar or Governmental Authority, web addresses, web pages, website, and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (e) Trade Secrets; (f) semiconductor chips, mask works and the like; and (g) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the Laws of any jurisdiction throughout in any part of the world. Service Provider acknowledges and understands that Presso currently owns Patents covering the Goods.
“Law” means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, governmental order or other requirement or rule of law of any Governmental Authority.
“Nonconforming Goods” means any goods received by Presso from Service Provider that: (a) do not conform to the Goods listed in this Purchase Order; (b) do not fully conform to the Specifications; (c) on visual inspection, Presso reasonably determines are otherwise defective; or (d) exceed the quantity of Goods ordered by Presso pursuant to this Purchase Order. Where the context requires, Nonconforming Goods are deemed to be Goods for purposes of this Purchase Order.
“Patents” means all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other Governmental Authority-issued indicia of invention ownership (including inventor’s certificates, petty patents, and patent utility models).
“Permits” means permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances and similar rights obtained or required to be obtained, from any Governmental Authority.
“Person” means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, Governmental Authority or any other entity.
“Personnel” of a Party means any agents, employees, contractors or subcontractors engaged or appointed by such Party.
“Purchase Order” means this document together with all terms and conditions attached hereto.
“Representatives” means a Party’s Affiliates and each of their respective Personnel, officers, directors, partners, shareholders, attorneys, third-party advisors, successors and permitted assigns.
“Services” means the manufacturing, assembly and other labor services set forth in this Purchase Order. If any services, functions, or responsibilities not specifically described in this Purchase Order are required for or incidental or inherent to the proper performance and provision of the applicable Services, they shall be deemed to be included within the scope of Services.
“Service Provider’s Intellectual Property” means all Intellectual Property Rights owned by or licensed to Service Provider, including any of Service Provider’s Background Intellectual Property Rights used in the design, production, and manufacturing of the Goods.
“Specifications” means the functional and technical specifications for the Goods that are provided and/or updated by Presso to Service Provider from time to time, or that are developed by Service Provider using work instructions from Presso. What constitutes Specifications will be determined by Presso in its business judgment.
“Taxes” means any and all present and future sales, income, stamp, and other taxes, levies, imposts, duties, deductions, charges, fees or withholdings imposed, levied, withheld or assessed by any Governmental Authority, together with any interest or penalties imposed thereon.
“Tooling” means, collectively, all tooling, dies, test and assembly fixtures, gauges, devices, and documentation (including engineering specifications and test reports) used by Service Provider in connection with its manufacture of the Goods, together with any accessions, attachments, parts, accessories, substitutions, replacements and appurtenances thereto.
“Trademarks” means all rights in and to United States and foreign trademarks, service marks, trade dress, trade names, brand names, logos, symbols, trade dress, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world.
“Trade Secrets” means all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures, and other confidential and proprietary information and all rights therein.
“UCC” means the Uniform Commercial Code, as adopted in the State of Georgia.
2. Purchase of Services
2.1 Purchase and Sale. Service Provider will perform the Services in accordance with the requirements and deadlines in this Purchase Order. All workers will be employed and paid as employees of Service Provider and Service Provider may not subcontract the Services (in whole or in part) to any Service Provider Party without Presso’s prior written approval, which may be provided via email. Any Purchase Order executed between an Affiliate and Service Provider shall be considered a two party agreement between Service Provider and such Affiliate. Any changes to this Purchase Order will require a written amendment signed by the parties, provided that Service Provider shall not unreasonably refuse any changes requested by Presso.
2.2 Quantity. Service Provider shall deliver the Goods in the quantity set forth in this Purchase Order to the address set forth in such Purchase Order.
2.3 No Right to Manufacture and Sell Goods or Similar Products to Other Parties. During the Term, Service Provider shall not manufacture or sell to any Person other than Presso, or enter into any agreement with any Person other than Presso related to the manufacture or sale of, the Goods or other goods or products that are similar to or competitive with the Goods. Service Provider shall not, at any time, use any of Presso’s Intellectual Property (including Foreground Intellectual Property Rights and Background Intellectual Property Rights) to manufacture or sell Goods or other goods or products that are similar to or competitive with the Goods to any other buyer. This Section 2.3 will survive expiration or termination of this Purchase Order.
3. Shipment, Delivery, Acceptance, and Inspection
3.1 Time is of the Essence. Time, quantity, and delivery to the Delivery Location are of the essence under this Purchase Order. Delivery times will be measured to the time that Goods are actually received at the Delivery Location.
3.2 Transfer of Title and Risk of Loss.
(a) Title to Goods shipped under this Purchase Order passes to Presso upon the earliest to occur of (i) delivery of the Goods to the carrier, (ii) payment of any portion of the Price for such Goods by Presso, (iii) Presso’s acceptance of the Goods and (iv) the time of identification of the Goods. Goods will be deemed identified upon Service Provider’s commencement of production. Title will transfer to Presso even if Service Provider has not been paid for the corresponding Services, provided that Presso will not be relieved of its obligation to pay for Services in accordance with the terms hereof.
(b) Notwithstanding any agreement between Presso and Service Provider concerning transfer of title or responsibility for shipping costs, risk of loss to Goods shipped under this Purchase Order passes to Presso upon receipt at the Delivery Location, and Service Provider will bear all risk of loss or damage with respect to Goods until Presso’s receipt and acceptance of such Goods in accordance with the terms hereof.
(c) Shipment cost liability and insurance is the responsibility of Presso.
3.3 Packaging and Labeling. Service Provider shall properly pack, mark, and ship Goods as instructed by Presso and otherwise in accordance with applicable Law and industry standards, and shall provide Presso with shipment documentation showing the Purchase Order number, Service Provider’s identification number for the subject Goods, the quantity of pieces in shipment, the number of cartons or containers in shipment, Service Provider’s name, the bill of lading number, and the country of origin.
3.4 Parts and Materials Disclosure. Upon Presso’s request, Service Provider shall promptly provide to Presso, in such form and detail as Presso requests, a list of all parts and materials incorporated in the Goods, the amount of such parts and materials, and information concerning any changes in or additions to such parts and materials.
3.5 Inspection. Goods are subject to Presso’s or its customer’s inspection and approval or rejection notwithstanding Presso’s prior receipt of or payment for the Services corresponding to the Goods. Presso shall have a reasonable period of time, not to be less than 30 days following delivery of the Goods to the Delivery Location (“Inspection Period”), to inspect all Goods received under this Purchase Order and to inform Service Provider, in writing, of Presso’s rejection of any Nonconforming Goods. Presso may return to Service Provider any or all units of rejected Goods that constitute Nonconforming Goods because they exceed the quantity stated in this Purchase Order. If Presso rejects any other Nonconforming Goods, Presso may elect to require Service Provider, at Service Provider’s sole cost, to repair or replace the rejected Goods at the location specified by Presso (which may include Service Provider’s location, Presso’s location or the location of a third party). All returns of Nonconforming Goods to Service Provider are at Service Provider’s sole risk and expense. Goods that are not rejected within the Inspection Period will be deemed to have been accepted by Presso; provided, however, that Presso’s acceptance of any Goods will not be deemed to be a waiver or limitation of Service Provider’s obligations pursuant to this Purchase Order (or any breach thereof), including those obligations with respect to Service Provider’s Product Warranty and Service Provider’s duty to indemnify Presso.
4. Price and Payment
4.1 Price. Presso shall purchase the Services from Service Provider at the amounts set forth in this Purchase Order which will be calculated in accordance with the rates set out. (“Prices”). All Prices include, and Service Provider is solely responsible for, all costs and expenses relating to packing, crating, boxing, transporting, loading and unloading, customs, Taxes, tariffs and duties, insurance and any other similar financial contributions or obligations relating to the production, manufacture, sale, and delivery of the Goods. All Prices are firm and are not subject to increase for any reason during the Term.
4.2 Invoices. Unless otherwise set forth on this Purchase Order, Service Provider shall issue periodic invoices/a monthly invoice to Presso for all Services ordered in the previous month. Each invoice must set forth in reasonable detail the amounts payable by Presso under this Purchase Order and contain the following information, as applicable: Purchase Order number, amendment number and line-item number; Service Provider’s name; Service Provider’s identification number; carrier name; ship-to address; weight of shipment; quantity of Goods shipped; number of cartons or containers in shipment; bill of lading number; country of origin; and any other information necessary for identification and control of the Goods. Presso reserves the right to return and withhold payment due to any invoices or related documents that are inaccurate or incorrectly submitted to Presso. The Parties shall seek to resolve any invoice disputes expeditiously and in good faith. Any payment by Presso of an invoice is not an acceptance of any nonconforming element or terms on such invoice or the related Goods.
4.3 Payment. Except for any amounts disputed by Presso in good faith, Service Provider’s accurate and correctly submitted invoices will be payable within 30 days following the later of (a) Presso’s receipt of Service Provider’s invoice or (b) Presso’s receipt of the applicable Goods. Presso may withhold payment pending receipt of evidence, in such form and detail as Presso may reasonably direct, of the absence of any Encumbrances on the Goods. Any payment by Presso will not be deemed acceptance of the Goods or waive the right to inspect.
4.4 Setoff: Contingent or Disputed Claims. In addition to any right of set-off, deduction or recoupment provided or allowed by Law, Presso may, without notice to Service Provider, set off against, and deduct and recoup from, any amounts due or to become due from Presso to Service Provider, any amounts due or to become due from Service Provider to Presso, including for damages resulting from breaches by Service Provider of its obligations under this Purchase Order or any other purchase orders between such parties. If an obligation of Service Provider is disputed, contingent or unliquidated, payment by Presso of all or any portion of the amount due may be deferred until such dispute contingency is resolved or the obligation is liquidated.
5. Term; Termination
5.1 Presso’s Right to Terminate for Convenience. Presso may, at its option, terminate this Purchase Order at any time and for any reason by giving written Notice to Service Provider. Termination will be effective thirty (30) days from the date of such letter. Presso will not be liable for and will not be required to make payments to Service Provider, directly or on account of claims by Service Provider’s subcontractors, for loss of anticipated profit, unabsorbed overhead, interest on claims, product development and engineering costs, facilities and equipment rearrangement costs or rental, unamortized depreciation costs, and general and administrative burden charges.
5.2 In the event that this Purchase Order is terminated, the provider shall provide a final invoice to include WIP, raw materials and finished goods.
5.3 Presso’s Right to Terminate for Cause. Presso may terminate this Purchase Order, by providing written Notice to Service Provider:
(a) if Service Provider is in material breach of, or threatens to breach, any representation, warranty or covenant of Service Provider under this Purchase Order and either the breach cannot be cured or, if the breach can be cured, it is not cured by Service Provider within a commercially reasonable period of time under the circumstances, in no case exceeding 60 days following Service Provider’s receipt of written Notice of such breach;
(b) notwithstanding the generality of (a), if Service Provider fails to, or threatens not to, timely deliver Goods conforming to the requirements of, and otherwise in accordance with, the terms and conditions of this Purchase Order;
(c) if Service Provider (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or
(d) if, without obtaining Presso’s prior written consent, (i) Service Provider sells, leases or exchanges a material portion of Service Provider’s assets, (ii) Service Provider merges or consolidates with or into another Person, or (iii) a change in Control of Service Provider occurs.
Any termination under this 5.3 will be effective on Service Provider’s receipt of Presso’s written Notice of termination or such later date (if any) set forth in such termination Notice.
5.4 Service Provider’s Right to Terminate for Cause. Service Provider may terminate this Purchase Order, by providing written Notice to Presso:
(a) except as otherwise specifically provided under this 5.4, if Presso is in material breach of any representation, warranty or covenant of Presso under this Purchase Order, and either the breach cannot be cured or, if the breach can be cured, it is not cured by Presso within a commercially reasonable period of time (in no case exceeding 60 days) after Presso’s receipt of written Notice of such breach; or
(b) if Presso (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Any termination under this 5.4 will be effective on Presso’s receipt of Service Provider’s written Notice of termination or such later date (if any) set forth in such Notice.
5.5 Effect of Expiration or Termination.
(a) Immediately upon the effectiveness of a Notice of termination delivered by Presso to Service Provider hereunder (as stated in such Notice), Service Provider shall, unless otherwise directed by Presso, and subject to Service Provider’s obligation provide resourcing cooperation under 5.5: (i) promptly terminate all performance under this Purchase Order and under any outstanding Purchase Orders; (ii) transfer title and deliver to Presso all finished Goods completed prior to effectiveness of the Notice of termination; and (iii) return to Presso all Bailed Property and any other property furnished by or belonging to Presso or any of Presso’s customers, or dispose of such Bailed Property or other property in accordance with Presso’s instructions (provided that Presso will reimburse Service Provider for the actual, reasonable costs associated with such disposal);
(b) Expiration or termination of the Term will not affect any rights or obligations of the Parties that: (i) come into effect upon or after termination or expiration of this Purchase Order; or (ii) otherwise survive the expiration or earlier termination of this Purchase Order pursuant to 15.4 and were incurred by the Parties prior to such expiration or earlier termination.
(c)Upon the expiration or earlier termination of this Purchase Order, each Party shall: (i) destroy all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on the other Party’s Confidential Information; (ii) permanently erase all of the other Party’s Confidential Information from its computer systems; and (iii) upon the other Party’s written request, certify in writing to such other Party that it has complied with the requirements of this 5.5(c).
5.6 Transition Cooperation. Upon the expiration or earlier termination of this Purchase Order for any reason, to the extent requested by Presso in writing, Service Provider will assist Presso in the transition of the Services and production of Goods from Service Provider to an alternative seller without production disruptions and take other actions reasonably requested by Presso, including manufacture, deliver and sell to Presso a sufficient inventory bank of Goods to ensure that the transition will proceed smoothly and without interruption or delay to Presso’s or Presso’s customers’ production of products incorporating the Goods, with pricing equivalent to the pricing in effect immediately before expiration or termination.
6. Certain Obligations of Service Provider
6.1 Quality.
(a) Service Provider shall meet or exceed Presso’s quality standards for the Goods as adopted by Presso from time to time, and which are provided by Presso to Service Provider in writing. At Presso’s request, Service Provider shall furnish to Presso test samples of Goods as reasonably required by Presso to determine if their manufacture is in accordance with the specifications furnished by Presso and Presso’s quality standards. Service Provider shall perform quality inspections of Goods before delivery and shall certify inspection results in the manner requested by Presso. If the Goods are found by Presso, in Presso’s reasonable discretion, to be in compliance with Presso’s quality standards for such Goods, subject to audit by Presso, Presso will promptly reimburse Service Provider for Service Provider’s reasonable, out-of-pocket costs incurred in complying with this Section 6.1(a).
(b) Without limiting the foregoing, upon notice by Presso, Service Provider shall permit Presso and its representatives to enter into the facilities used to manufacture, assemble or otherwise produce the Goods to confirm that the Goods are in compliance with the Specifications and Presso’s quality standards. Service Provider acknowledges and agrees that Presso may keep one or more of Presso’s personnel on site at such location(s) to monitor performance hereunder.
(c) Service Provider shall work together with Presso to achieve global process improvements in the areas of quality, responsiveness, delivery, and cost. At Presso’s request, Service Provider’s representatives shall meet with Presso to review the progress made on these objectives. Technology improvements are the responsibility of Presso.
(d) Service Provider shall provide reasonable support as requested by Presso to address and correct quality concerns. In addition to its other rights and remedies, Presso may hold Service Provider responsible for costs associated with quality-issue investigation and containment to the extent caused by Service Provider’s acts or omissions.
(e) Service Provider shall, on a continuous basis, identify ways to improve the quality, service, performance standards and technology for the Goods, including through participation in Presso’s quality improvement initiatives.
6.2 Duty to Advise. Service Provider shall promptly provide written Notice to Presso of any of the following events or occurrences, or any facts or circumstances reasonably likely to give rise to any of the following events or occurrences: (a) any failure by Service Provider to perform any of its obligations under this Purchase Order; (b) any delay in delivery of Goods; (c) any defects or quality problems relating to Goods; (d) any change in Control of Service Provider; (e) any deficiency in Presso specifications, samples, prototypes or test results relating to this Purchase Order; or (f) any failure by Service Provider, or its subcontractors or common carriers, to comply with Law. In addition, Service Provider shall promptly notify Presso in writing of any change in Service Provider’s authorized Representatives, insurance coverage or professional certifications.
6.3 Certain Changes.
(a) Service Provider shall promptly make any changes Presso directs in writing with respect to the Goods, which may include changes in the design, drawings, specifications, processing, inspection, testing, quality control, methods of packing and shipping or the date or place of delivery. Any changes pursuant to this Section 6.3(a) will not affect the Price or time for delivery of Goods unless expressly agreed otherwise in this Purchase Order.
(b) Service Provider may not make any changes with respect to the Goods or scope of this Purchase Order without Presso’s advance written approval, which may be given or withheld in Presso’s sole discretion, including (i) the location at which Goods are manufactured, (ii) any subcontractors to Service Provider with respect to Goods, (iii) the processes or procedures used by Service Provider in the production of Goods, (iv) the composition, fit, form, function or appearance of Goods, or (v) chemicals, raw materials or any components or ingredients used in production of Goods. If Service Provider learns of a possible change to the Goods that may reduce costs, improve quality, or otherwise be beneficial to Presso, Service Provider shall promptly notify Presso of the possible change.
7. Compliance With Laws
7.1 Compliance. Service Provider shall at all times comply with all Laws applicable to this Purchase Order, Service Provider’s operation of its business and the exercise of its rights and performance of its obligations hereunder.
7.2 Permits, Licenses, and Authorizations. Service Provider shall obtain and maintain all Permits necessary for the exercise of its rights and performance of Service Provider’s obligations under this Purchase Order, including any Permits required for the import of Goods or any raw materials and other manufacturing parts used in the production and manufacture of the Goods, and the shipment of hazardous materials, as applicable.
8. Representations and Warranties; Product Warranty
8.1 General. Service Provider represents and warrants to Presso that:
(a) it is a duly organized, validly existing and in good standing under the laws of the state of [];
(b) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Purchase Order;
(c) it has the full right, power and authority to enter into this Purchase Order and to perform its obligations hereunder;
(d) the execution of this Purchase Order by its Representative, and the delivery of this Purchase Order by Service Provider, have been duly authorized by all necessary action on the part of Service Provider;
(e) the execution, delivery, and performance of this Purchase Order by Service Provider will not violate, conflict with, require consent under or result in any breach or default under (i) any of Service Provider’s organizational documents, (ii) any applicable Law or (iii) with or without notice or lapse of time or both, the provisions of any material contract to which it is subject;
(f) this Purchase Order has been executed and delivered by Service Provider and (assuming due authorization, execution and delivery by Presso) constitutes the legal, valid and binding obligation of Service Provider, enforceable against Service Provider in accordance with its terms;
(g) it is in compliance with all applicable Laws and contracts relating to this Purchase Order, the Services and the operation of its business (including all loan covenants and other financing obligations to which it is subject);
(h) it has obtained all licenses, authorizations, approvals, consents or permits required by applicable Laws to conduct its business generally and to exercise its rights and perform its obligations under this Purchase Order; and
(i) it is not insolvent and is paying all of its debts as they become due.
8.2 Services Warranty. Service Provider warrants to Presso that the Services will be provided in a timely, diligent, professional and workmanlike manner using personnel of requisite qualifications and experience and with a degree of quality equal to or higher than applicable industry standards.
8.3 Product Warranty. Service Provider warrants to Presso and any end users of the Goods that (the “Product Warranty”):
(a) The Goods will:
(i) conform, in all material respects, to the Specifications and other standards, drawings, samples, descriptions, quality requirements, performance requirements, Purchase Order, and fit, form and function requirements furnished, specified or approved by Presso for the Goods;
(ii) be merchantable (as such term is defined in the UCC) and free from defects, latent or otherwise, in design, materials, and workmanship;
(iii) not infringe upon, violate or misappropriate the Intellectual Property Rights of any Person, except where compliance with Section 8.3(a)(i) necessarily results in such infringement, violation or misappropriation.
(b) Each of the Goods will be new and conveyed by Service Provider to Presso with good title, free and clear of all Encumbrances.
9. Indemnification
Service Provider (as “Indemnifying Party”) shall indemnify, defend and hold harmless the Presso Parties and their officers, directors, employees, agents, affiliates, successors and permitted assigns] (collectively, “Indemnified Parties”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Purchase Order and the cost of pursuing any insurance providers, incurred by any Indemnified Party (collectively, “Losses”), arising out or resulting from any third-party Claim alleging: (a) a breach or non-fulfillment of any of Indemnifying Party’s representations, warranties, or covenants set forth in this Purchase Order; or (b) any negligent or more culpable act or omission of Indemnifying Party or any of its Representatives (including any recklessness or willful misconduct) in connection with Indemnifying Party’s performance under this Purchase Order. Presso shall give prompt written notice of a Claim and Presso has the right (but no obligation) to participate in the defense of such Claim at its expense. In no event will the Service Provider settle any Losses without Presso’s prior written consent, not to be unreasonably delayed.
10. NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. EXCEPT FOR LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY OR THEIR REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS PURCHASE ORDER, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11. Intellectual Property
11.1 Ownership. Each of the Parties acknowledges and agrees that: (a) each Party retains exclusive ownership of its Background Intellectual Property Rights; (b) Presso does not transfer to Service Provider any of its Background Intellectual Property Rights, and Service Provider may not use any of Presso’s Background Intellectual Property Rights other than to provide Services and deliver Goods to Presso hereunder; (c) all Foreground Intellectual Property Rights will be owned by Presso; (d) Service Provider perpetually and exclusively assigns to Presso all of Service Provider’s right, title and interest in and to all Foreground Intellectual Property Rights, including upon future creation of such rights and any such rights Service Provider may have acquired prior to the Effective Date of this Purchase Order, and, to the extent that any Foreground Intellectual Property Rights are copyrightable works or works of authorship (including computer programs, technical specifications, documentation, and manuals), the Parties agree that such works are “works made for hire” for Presso under the United States Copyright Act; (e) Service Provider shall only use the Foreground Intellectual Property Rights to provide Services and deliver Goods to Presso; and (f) Service Provider waives any claim against Presso, including any hold-harmless or similar claim, whether known or unknown, contingent or latent, in any way related to a claim asserted against Service Provider or Presso for infringement of any Intellectual Property Rights.
11.2 Prohibited Acts. Each of the Parties shall not: (a) take any action that may interfere with the other Party’s Intellectual Property Rights, including such other Party’s ownership or exercise thereof; (b) challenge any right, title or interest of the other Party in such other Party’s Intellectual Property Rights; (c) make any claim or take any action adverse to such other Party’s ownership of its Intellectual Property Rights; (d) register or apply for registrations, anywhere in the world, the other Party’s Trademarks or any other Trademark that is similar to such other Party’s Trademarks or that incorporates such Trademarks in whole or in confusingly similar part; (e) use any mark, anywhere, that is confusingly similar to the other Party’s Trademarks; (f) misappropriate any of the other Party’s Trademarks for use as a domain name without such other Party’s prior written consent; or (g) alter, obscure or remove any of the other Party’s Trademarks or trademark or copyright notices or any other proprietary rights notices placed on the products purchased under this Purchase Order (including Goods), marketing materials or other materials.
12. Confidentiality
12.1 Scope of Confidential Information. From time to time, Presso (as the “Disclosing Party”) may disclose or make available to Service Provider (as the “Receiving Party”) information about its business affairs, goods and services, confidential information and materials comprising or relating to Intellectual Property Rights, trade secrets, third-party confidential information and other sensitive or proprietary information, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” constitutes “Confidential Information” hereunder. Without limiting the generality of the following, Confidential Information includes the Specifications, any non-public aspects of Presso’s Intellectual Property, and any information subject to the non-disclosure agreement by and between the Parties. Confidential Information does not include information that at the time of disclosure and as established by documentary evidence: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this 12 by the Receiving Party or any of its Representatives; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party; (d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or (e) is required to be disclosed pursuant to applicable Law.
12.2 Protection of Confidential Information. The Receiving Party shall, during the Term and for 5 years following the expiration or termination of this Purchase Order: (a) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (b) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Purchase Order; and (c) not disclose any such Confidential Information to any Person, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Purchase Order. The Receiving Party shall be responsible for any breach of this caused by any of its Representatives. On the expiration or earlier termination of this Purchase Order or at any time during or after the Term, at the Disclosing Party’s written request, the Receiving Party and its Representatives shall, pursuant to 5.5(c), promptly destroy all Confidential Information and copies thereof that it has received under this Purchase Order.
13. Tangible Property
13.1 Tooling Orders.
(a) Service Provider may not charge Presso for the cost of manufacturing or procuring any Tooling or other materials used in the production of the Goods unless Presso agrees in writing to reimburse Service Provider for Service Provider’s actual reasonable costs of manufacturing or procuring such Tooling or other materials (a “Reimbursement Authorization”). Payment for such Tooling or materials will be due only after (a) Presso has successfully completed all testing of such Tooling or materials required by Presso, which will be conducted at Service Provider’s sole cost and expense, (b) Presso has successfully conducted a tooling audit in accordance with its customer’s requirements, and (c) Service Provider has provided to Presso detailed invoices documenting the actual costs incurred by Service Provider for such Tooling or materials, including copies of any invoice issued to Service Provider by any third party with respect thereto, and other any other information reasonably requested by Presso with respect to such Tooling or materials (which may include CAD models and drawings). Presso shall pay Service Provider only the actual cost of such Tooling or materials, not to exceed the authorized amount, if any, stated in the applicable Reimbursement Authorization.
(b) Such Tooling or other materials that are subject to a Reimbursement Authorization provided by Presso will become Bailed Property (and title thereto will vest in Presso) immediately upon completion of all testing required by Presso (provided that Presso will not be relieved of its obligation to pay for such Tooling or materials in accordance with the terms of this Purchase Order) or, if earlier, any payment by Presso to Service Provider therefore. Any payments made by Presso for Bailed Property are expressly intended by Presso to be held in trust for the benefit of any subcontractors or suppliers used by Service Provider to fabricate the Bailed Property that relates to such payments; and Service Provider agrees to hold such payments as trustee in express trust for such subcontractors or suppliers until Service Provider has paid the subcontractors or suppliers in full for the Bailed Property. Presso will not pay for any Tooling necessary for the production of sample products unless otherwise provided in the applicable Reimbursement Authorization.
15. Miscellaneous
15.1 Further Assurances. Upon Presso’s reasonable request, the Service Provider shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to this Purchase Order.
15.2 Relationship of the Parties. The relationship between Service Provider and Presso is solely that of vendor and vendee and they are independent contracting parties. Nothing in this Purchase Order creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement or undertaking with any third party.
15.3 Entire Agreement. This Purchase Order, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
15.4 Survival. Subject to the limitations and other provisions of this Purchase Order: (a) the representations and warranties contained herein will survive the expiration or earlier termination of this Purchase Order; and (b) Sections 1, 2.4, 3, 4, 5.5, 5.6, 7, 9, 10, 11, 12, 13.1, 14 and 15 of this Purchase Order, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, will survive the expiration or earlier termination of this Purchase Order.
15.5. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Purchase Order (each, a “Notice”) must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this section). All Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Purchase Order, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
Notice to Service Provider: | [SERVICE PROVIDER ADDRESS] |
Email: | |
Attention: | |
Notice to Presso: | Presso, Inc. 3423 Piedmont Road NE, #470, Atlanta, Georgia 30305 |
Email: [email protected] | |
Attention: Cristina Edelstein, Senior Manager of Supply Chain |
15.6 Interpretation. For purposes of this Purchase Order: (a) the words “include,” “includes” and “including” is deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Purchase Order as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Purchase Order: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Purchase Order; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties drafted this Purchase Order without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Purchase Order to the same extent as if they were set forth verbatim herein.
15.7 Headings. The headings in this Purchase Order are for reference only and do not affect the interpretation of this Purchase Order.
15.8 Severability. If any term or provision of this Purchase Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of this Purchase Order or invalidate or render unenforceable such term or provision in any other jurisdiction.
15.9 Amendment and Modification. No amendment to this Purchase Order is effective unless it is in writing, identified as an amendment to this Purchase Order and signed by an authorized Representative of each Party.
15.10 Waiver. No waiver under this Purchase Order is effective unless it is in writing, identified as a waiver to this Purchase Order and signed by an authorized representative of the Party waiving its right. None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege or condition arising from this Purchase Order: (i) any failure or delay in exercising any right, remedy, power or privilege or in enforcing any condition under this Purchase Order; or (ii) any act, omission or course of dealing between the Parties.
15.11 Cumulative Remedies. All rights and remedies provided in this Purchase 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 purchase order between the Parties or otherwise.
15.12 Equitable Remedies. Service Provider acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under 12 would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by Service Provider of any such obligations, Presso shall, in addition to any and all other rights and remedies that may be available to Presso at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy.
15.3 Assignment. Service Provider may not assign any of its rights or delegate any of its obligations under this Purchase Order without the prior written consent of Presso. Presso may assign any of its rights or delegate any of its obligations to any Affiliate or to any Person acquiring all or substantially all of Presso’s assets. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under this Purchase Order.
15.14 Successors and Assigns. This Purchase Order is binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.
15.15 Governing Law. This Purchase Order and all matters arising out of or relating to this Purchase Order, are governed by, and construed in accordance with, the Laws of the State of Georgia, United States of America, without regard to the conflict of laws provisions thereof. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Purchase Order.
15.16 Choice of Forum. Each Party irrevocably and unconditionally agrees that it shall not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Purchase Order, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than United States District Court for the Northern District of Georgia or, if such court does not have subject-matter jurisdiction, the courts of the State of Georgia sitting in Fulton County, Georgia, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in United States District Court for the Northern District of Georgia or, if such court does not have subject-matter jurisdiction, the courts of the State of Georgia sitting in Fulton County, Georgia. Each Party agrees that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.
15.17 Counterparts. This Purchase Order may be executed in counterparts, each of which is deemed an original, but all of which together is deemed to be one and the same. A signed copy of this Purchase Order delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Purchase Order, if the party sending such facsimile, e-mail or other means of electronic transmission has received express confirmation that the recipient party received the Purchase Order (not merely an electronic facsimile confirmation or automatic email reply).
15.18 Force Majeure. No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Purchase Order, for any failure or delay in fulfilling or performing any term of this Purchase Order, when and to the extent such party’s (the “Impacted Party”) failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; and (e) embargoes or blockades in effect on or after the date of this Purchase Order. The Impacted Party shall give notice within 10 days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 20 days following written notice given by it under this Section 15.18, the other Party may thereafter terminate this Purchase Order upon 10 days’ written notice.
14. Insurance
During the Term and for a period of 1 year thereafter, Service Provider shall, at its own expense, maintain and carry in full force and effect commercial general liability insurance (including product liability) in a sum no less than $3 million, all-risk property insurance covering Bailed Property for its full replacement value, with financially sound and reputable insurers. Upon Presso’s request, Service Provider shall provide Presso with a certificate of insurance evidencing the insurance coverage specified in this Section. The certificate of insurance shall name Presso as an additional insured and loss payee. Service Provider shall provide Presso with 30 days’ advance written notice in the event of a cancellation or material change in such insurance policy. Service Provider waives and Service Provider shall cause its insurers to waive any right of subrogation or other recovery against Presso, its Affiliates, and their insurers.
FAQ
What do you need to use the Presso machine?
You need a valid credit card, a smart phone with QR code scanning capability, and a hanger to hang your garment after it has been pressed.
How much does it cost to use the machine?
Presso will be free to use for a limited time. After that time pricing will be determined by your property management team.
Can I Presso children's clothing?
Does Presso use any chemicals to clean my garments?
Presso does not use any of the harsh chemicals that traditional dry-cleaners use, such as Tetrachloroethylene / Perchloroethylene and N-propyl bromide.
We use sanitized steam and organic eco-friendly cleaning liquids to process your garment.
