MUJIN GENERAL TERMS AND CONDITIONS OF PURCHASE ORDER

GENERAL TERMS AND CONDITIONS OF PURCHASE ORDER

1. PURCHASE TERMS.
   • These terms and conditions of purchase (these “Terms”) are the only terms which govern the purchase of products and/or services (collectively, “Products”) by Mujin Corp. and its affiliates (collectively, “Mujin”) from the seller named on the purchase order attached to these Terms (“Seller”). Notwithstanding anything herein to the contrary, if a written contract signed by an authorized representative of each party is in existence covering the sale of the Products covered by such contract (a “Master Agreement”), the terms and conditions of such Master Agreement shall prevail to the extent they are inconsistent with these Terms.

 

• The accompanying purchase order (the “Purchase Order”) and these Terms (collectively with the Purchase Order, this “Agreement”), together with the Master Agreements, if any exists, comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Seller’s general terms and conditions of sale regardless of whether or when Seller has submitted its sales confirmation or such terms. This Agreement expressly limits Seller’s acceptance of any Purchase Orders to the terms of this Agreement. Any and all terms proposed in Seller’s acceptance of Mujin’s Purchase Orders which add to, vary from, or conflict with the terms herein are hereby objected to by Mujin. Fulfillment of this Purchase Order constitutes acceptance of these Terms.

 

• Mujin may, by written notice to Seller, change the Purchase Order with respect to any one or more of the following: (i) quantity of Products; (ii) method of shipping or packaging; (iii) delivery schedule; (iv) Delivery Point (as defined below); and (v) Product designs or specifications. Should any such change increase or decrease the cost of, or the time required for, performance of the Purchase Order, Seller may request in writing a commercially reasonable adjustment of the price and/or delivery schedule (together with a statement of the amount of the requested adjustment and the reason therefor) within five (5) calendar days after Seller’s receipt of the notice of change.

 

2. DELIVERY.
   • Delivery Date. Seller shall deliver the Products in the quantities and on the date(s) specified in the Purchase Order, or thirty (30) calendar days after the date of Seller’s receipt of the Purchase Order if no date is specified, or as otherwise agreed in writing and signed by an authorized representative of each party (the “Delivery Date”). If Seller fails to deliver the Products in full on the Delivery Date, or Mujin reasonably concludes that Seller cannot or will not deliver the Products by the Delivery Date, Mujin may terminate this Agreement immediately by providing written notice to Seller and Seller shall indemnify Mujin against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Products on the Delivery Date. Mujin has the right to return any Products delivered more than fifteen (15) calendar days prior to the Delivery Date at Seller’s expense and Seller shall redeliver such Products on the Delivery Date unless Mujin has expressly permitted such early delivery in writing. Seller shall deliver all Products to the address specified in the Purchase Order (the “Delivery Point”) during Mujin’s normal business hours or as otherwise instructed by Mujin.

 

• Packaging Instructions. Seller shall pack all Products for shipment according to Mujin’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Products are delivered in undamaged condition. Damage resulting from improper packaging shall be charged to Seller. Seller must provide Mujin prior written notice if it requires Mujin to return any packaging material.  Any return of such packaging material shall be made at Seller’s risk of loss and expense.

 

3. SHIPPING. Delivery shall be made DDP (Delivery Point) under Incoterm 2020 at the Delivery Point and in accordance with the terms of this Agreement. Unless the above Incoterm provides to the contrary, or where shipping terms are otherwise agreed by the parties in writing, Seller shall pay for packaging, transportation, insurance and customs duties and fees associated with shipment of the Products to the Delivery Point. The Purchase Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence, and any other documents pertaining to the Purchase Order.

 

4. QUANTITY. If Seller delivers more than the quantity of Products ordered, Mujin may reject all or any excess Products. Any such rejected Products shall be returned to Seller at Seller’s sole risk and expense.  If Mujin does not reject the Products and instead accepts the delivery of Products at an increased or reduced quantity, the total Price (as defined in Section 7) for the Products shall be adjusted on a pro-rata basis. If Seller delivers fewer than the quantity of Products ordered, and Mujin does not terminate this Agreement pursuant to Section 2(a), Seller shall deliver any deficient quantities on an expedited basis.

 

5. TITLE AND RISK OF LOSS. Title and risk of loss or damage to the Products acquired hereunder shall pass to Mujin when such Products are duly tendered to Mujin at the Delivery Point so as to enable Mujin to take delivery.

 

6. INSPECTION AND ACCEPTANCE. Mujin shall have forty-five (45) calendar days from the Delivery Date to reject any shipment of Products that is nonconforming or defective. Acceptance is effective upon notice from Mujin to Seller, or after the above forty-five (45) day period has lapsed without notice from Mujin. Mujin, at its sole option, may inspect all or a sample of the Products, and may reject any nonconforming or defective Products or an entire shipment of Products if it determines that more than five (5) percent of the Products in such shipment are nonconforming or defective. If Mujin rejects all or any portion of the Products, Mujin has the right, effective upon written notice to Seller, to: (a) rescind this Agreement in its entirety; (b) accept the Products at a reasonably reduced price; or (c) reject the Products and require replacement of the rejected Products.  If Mujin requires replacement of the Products, Seller shall, at its expense, within thirty (30) calendar days of receiving Mujin’s notice replace the nonconforming or defective Products and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective Products and the delivery of replacement Products.  If Seller fails to timely deliver replacement Products, Mujin may replace them with Products from a third party and charge Seller the cost thereof and terminate this Agreement for cause pursuant to Section 14  Any inspection or other action by Mujin under this Section 6 shall not reduce or otherwise affect Seller’s obligations under this Agreement, and Mujin shall have the right to conduct further inspections after Seller has carried out its remedial actions.

 

7. PRICE. The price of the Products is the price stated in the Purchase Order (the “Price”). If no price is included in the Purchase Order, the Price shall be the price set out in Seller’s published price list in force as of the date of the Purchase Order.   The Price shall be inclusive of all applicable taxes, including, but not limited to, all sales, use or excise taxes. For clarity, Mujin shall have no obligation to pay or reimburse Seller for any additional costs or expenses beyond the Price.  No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Mujin.

 

8. PAYMENT TERMS. Seller shall issue an invoice to Mujin on or any time after the completion of delivery and only in accordance with this Agreement. Mujin shall pay all properly invoiced amounts due to Seller within sixty (60) calendar days after Mujin’s receipt of such invoice, except for any amounts disputed by Mujin in good faith (including if Products are found to be nonconforming or defective pursuant to Section 6).  All payments must be in US dollars.  Without prejudice to any other right or remedy it may have, Mujin reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Mujin to Seller.  In the event of a payment dispute, Mujin shall deliver a written statement to Seller prior to the date payment is due on the disputed invoice listing all disputed items and providing a reasonably detailed description of each disputed item.  The parties shall seek to resolve all such disputes expeditiously and in good faith.  Seller shall continue performing its obligations under this Agreement notwithstanding any such dispute.

 

9. CONFIDENTIAL INFORMATION. All non-public, confidential or proprietary information of Mujin, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Mujin to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by Mujin in writing.  Upon Mujin’s request, Seller shall promptly return all documents and other materials received from Mujin.  Mujin shall be entitled to all remedies available under law or equity, including injunctive relief for any violation of this section.

 

10. WARRANTIES. Seller warrants to Mujin that for a period of twelve (12) months from the start date of commercial use of Products, or for eighteen (18) months to include a six (6) month installation period if Products require installation, all Products shall:
    • be free from any defects in workmanship, material and design;
    • conform to applicable specifications, drawings, designs, samples and other requirements specified by Mujin;
    • be fit for their intended purpose and operate as intended;
    • be merchantable;
    • be free and clear of all liens, security interests or other encumbrances; and
    • not infringe or misappropriate any third party’s patent or other intellectual property rights.

These warranties survive any delivery, inspection, acceptance or payment of or for the Products by Mujin. The warranties set forth in this Section 100 are cumulative and in addition to any other warranty provided by law or equity.  If Mujin gives Seller notice of noncompliance pursuant to this Section 100, Seller shall, at its own cost and expense, within thrity (30) calendar days replace or repair the defective or nonconforming Products and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming Products to Seller and the delivery of repaired or replacement Products to Mujin. If Seller is unable to replace or repair such Products within thrity (30) business days, it shall provide notice thereof to Mujin, and Mujin may, in Mujin’s sole discretion, request a refund for such Products, which refund shall be made in full by Seller within thrity (30) business days after request by Mujin.

 

11. INDEMNIFICATION. Seller shall indemnify, hold harmless, and defend Mujin, its parent company, any subsidiaries, affiliates, successors or assigns, and its and their respective directors, officers, shareholders, agents and employees against any claim, suit or proceeding and any damages or liability therefrom or settlement thereof (including reasonable attorneys’ fees and related costs) to the extent (i) based on a representation or warranty concerning a Product made by Seller, (ii) relating to any breach (or any claim that, if true, would be a breach) of this Agreement by Seller or (iii) based on a claim of death, injury or property damage caused by a Product, or any negligent, intentional, willful or other unlawful or wrongful act or omission on the part of Seller, its employees or agents. Mujin may, at Mujin’s option, participate and appear on an equal footing with Seller in such claim, suit or proceeding. Seller may not settle a claim, suit or proceeding without the prior written approval of Mujin.

 

12. LIMITATION OF LIABILITY. NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR LIMIT (A) SELLER’S LIABILITY UNDER SECTION 11 HEREOF, OR (B) SELLER’S LIABILITY FOR FRAUD, PERSONAL INJURY OR DEATH CAUSED BY ITS NEGLIGENCE OR WILLFUL MISCONDUCT.

 

13. COMPLIANCE WITH LAW. Seller shall comply with all applicable laws, regulations and ordinances. Seller shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.  Seller shall comply with all export and import laws of all countries involved in the sale of the Products under this Agreement.  Seller assumes all responsibility for shipments of Products requiring any government import clearance.  Mujin may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Products.

 

14. TERMINATION. In addition to any remedies that may be provided hereunder, Mujin may terminate this Agreement with immediate effect upon written notice to Seller, either before or after the acceptance of the Products if:
    • Seller has not materially performed or complied with any of terms of this Agreement;
    • Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors; or
    • Seller breaches or terminates any other agreement between Mujin and Seller.

 

15. SOLE REMEDY. If Mujin terminates the Agreement for any reason, Seller’s sole and exclusive remedy is payment for the Products received and accepted by Mujin prior to the termination.

 

16. WAIVER AND SEVERABILITY. The failure of Mujin to enforce at any time or for any period of time any of the provisions of this Agreement shall not constitute a waiver of such provisions.  If Mujin agrees, in writing, to waive any provision of this Agreement or a breach by Seller of any provision of this Agreement, such waiving shall not constitute a waiver of future compliance with this Agreement, and such provision, as well as all other provisions of this Agreement, shall remain in full force and effect. If any provision of this Agreement is held to be illegal, invalid or otherwise unenforceable, such provision shall be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, shall be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement shall continue in full force and effect.

 

17. ASSIGNMENT. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Mujin. Any purported assignment or delegation in violation of this section shall be null and void.  No assignment or delegation shall relieve Seller of any of its obligations hereunder.  Mujin may at any time assign or transfer any or all of its rights or obligations under this Agreement without Seller’s prior written consent.

 

18. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law rules. The U.N. Convention on the International Sale of Products shall not apply to the Products or this Agreement. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its rules and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The place of arbitration shall be New York City, United States of America.