Terms and Conditions of Purchase
1. Definitions. As used herein, “Buyer” is Vicarious Surgical Inc., and “Seller” is the person or entity supplying the Goods or Services identified on the Buyer’s purchase order to which these terms and conditions are attached or in which they are otherwise included or referenced (“Purchase Order”). “Goods” means all products, information, materials, equipment or other items ordered by Buyer in this Purchase Order, and “Services” means services ordered by Buyer in this Purchase Order (which may include, without limitation, product development services).
2. Acceptance. Acceptance of this Purchase Order is expressly limited to the terms of this Purchase Order and these terms and conditions. Seller’s signing the acknowledgment copy of this Purchase Order, or shipment of Goods or commencement of performance of Services, constitutes Seller’s acceptance of this Purchase Order and the terms hereof, and Seller agrees to be bound thereby, and this Purchase Order thus becomes an enforceable contract between Buyer and Seller. No changes to a Purchase Order or these terms and conditions are binding on Buyer unless they are in writing and signed by an authorized representative of Buyer. Buyer is not bound by any provisions in Seller’s order acknowledgment, packing slip, invoice, shrink‐wrap or click‐through terms, or other submitted terms (including counter offers), all of which are hereby rejected and shall have no effect.
3. Specifications. All Goods and Services furnished under this Purchase Order must be new and in exact accordance with the requirements of this Purchase Order, including, without limitation, any datasheets, descriptions or specifications, and be identical to those furnished by Seller under the immediately preceding Purchase Order, unless Seller has obtained prior written permission from Buyer to make changes.
4. Price. Purchase prices shall be as stated on the face of this Purchase Order, and shall not be subject to change without Buyer’s prior written consent. Purchase prices are inclusive of any extra charges, including charges for packing, containers and insurance, except as otherwise specifically provided on this Purchase Order. All taxes and duties based upon and measured by sale, use or manufacture shall be shown separately on Seller’s invoice.
5. Changes. Buyer reserves the right at any time to make engineering change orders (ECOs), as well as changes in drawings, descriptions, specifications, quantities and delivery schedules as to any Goods or Services upon notice to Seller. Seller’s claims for adjustments under this clause must be asserted in writing within thirty (30) days from the date of receipt of notification of the change(s). Seller agrees to advise Buyer in writing, at least thirty (30) days in advance, of any changes that would materially affect, the fit, form, function and/or appearance of the Goods or Services governed by this Purchase Order.
6. Payment and Discounts. Unless otherwise indicated in this Purchase Order, payment for Goods and Services will be made in U.S. Dollars and shall be made within forty-five (45) days after Buyer’s receipt of Seller’s correct invoice issued by Seller to Buyer for Goods and Services accepted by Buyer. At the time the Purchase Order is established, if Buyer and Seller agree, Buyer may elect to pay an invoice within fifteen (15) calendar days from the later of (a) Buyer’s receipt of Seller’s invoice or (b) the date of delivery of Goods or completion of Services ordered, and Buyer will receive a discount off of the price otherwise payable, at the discount rate set forth in the applicable Purchase Order. All payment periods shall be computed on date of Buyer’s receipt of correct and proper invoices prepared in accordance with the terms of this Purchase Order. For purposes of determining whether payment has been made on time, payment is deemed to be made on the date of postmark of Buyer’s check or the bank’s issue date for payments made by credit card. Upon reasonable notice to Seller, Buyer may withhold and deduct from any part of payments due under this Purchase Order all or any part of any damages suffered or incurred by Buyer resulting from Seller’s breach of these terms and conditions, or any other amount which Seller owes Buyer arising out of or related to the transaction which is the subject of this Purchase Order or which is otherwise due from Seller to Buyer.
7. Time of Delivery. Time of delivery is of the essence for Goods, and time of performance is of the essence for Services. Seller shall report delays or potential delays in delivery or performance immediately to Buyer. Buyer may, without limiting its other remedies, direct expedited routing of Goods, and any increased cost due to expedited routing shall be paid by Seller. Delivery and performance shall not be deemed to be complete until the Goods or Services, as applicable, have been actually received and accepted by Buyer, notwithstanding any agreement to pay freight, express or other transportation charges. Seller shall retain the bill of lading for all shipments, and Buyer may request a copy of said bill of lading from Seller. All packing and packaging shall be in accordance with instructions from Buyer on this Purchase Order or in separate written notification. In the absence of Buyer’s instructions, all packing and packaging shall comply with good commercial practice and applicable carrier’s tariffs, and shall consist of suitable containers for optimum protection of the Goods. Delivery shall be made by the carrier and route specified by Buyer, and shipments shall be routed via the most economical mode of commercially reasonable transportation available consistent with this Purchase Order. The number of this Purchase Order must be shown on all packing slips and invoices and on all packages, crates, or other containers, together with the destination party and address specified by Buyer. Buyer reserves the right to refuse Goods and Services and to cancel, unless otherwise specified herein, all or any part of this Purchase Order if Seller fails to deliver or delays in delivering all or any part of the Goods or to perform the Services in accordance with these terms and conditions, including, but not limited to, conformance to Buyer’s specifications and quantity ordered, or if Seller breaches any of these terms or conditions. Seller’s acceptance of any part of this Purchase Order shall not bind Buyer to accept future shipments, nor deprive it of the right to return Goods already accepted. Deliveries made in advance of the designated schedule are prohibited without Buyer’s prior written consent.
8. Cancellation and Termination. Buyer may cancel, in whole or in part, this Purchase Order or any contract resulting from its acceptance as follows: (a) if this Purchase Order is for Goods, upon written notice to Seller given prior to delivery of the Goods to Buyer’s carrier or, if the Goods are to be delivered to Buyer’s facility by Seller, shipment of Goods, or (b) if this Purchase Order is for Services, at any time prior to or during performance. In the event of such cancellation, Buyer shall have no obligation to Seller except that if the cancellation is other than on account of fault by Seller and is made for Buyer’s convenience only, then Buyer shall compensate Seller for direct out of pocket costs actually incurred by Seller prior to cancellation that cannot be reasonably recovered, reallocated or mitigated, and which costs are directly related to the fulfillment of Seller’s obligations pursuant to this order. If this Purchase Order is for Services, Buyer shall reasonably compensate Seller for Services properly rendered up to the time of receipt by Seller of Buyer’s notice of cancellation or termination.
9. Inspection. Seller shall verify that all Goods meet all specifications before shipment. Upon request, Seller shall supply Buyer with a certified, true copy of Seller’s pre-shipment test results. Payment for Goods or Services shall not constitute acceptance thereof. All Goods are subject to Buyer’s inspection at its facility or at the source if deemed necessary by Buyer or required by government regulation. Buyer may inspect any shipment of Goods by inspecting and testing a representative sample taken from such shipment, and if such sample is found by Buyer to fail to conform, Buyer may, in its discretion, reject the entire shipment or any portion of such shipment. If any of the Goods are found at any time to be either latently or patently defective in design, material or workmanship, or otherwise not in exact conformity with the requirements of this Purchase Order, Buyer may reject and return such Goods (and recover any transportation or other charges paid by Buyer for rejected Goods) at Seller’s risk and expense, such Goods not to be replaced without prior written authorization by Buyer. Payments made to receive cash discounts or for Goods or Services prior to inspection shall not constitute acceptance thereof and are without prejudice to Buyer’s right to inspection and rejection and to any and all claims that Buyer may have against Seller. Buyer may accept or reject any shipments made in excess of or less than the quantity designated in this Purchase Order. Excess Goods may be held by Buyer at Seller’s risk and expense for a reasonable time awaiting shipping instructions.
10. Shipping. Except as otherwise expressly provided herein, title to and risk of loss on all items, including Goods, shipped by Seller to Buyer shall pass to Buyer upon Seller’s delivery of such items to Buyer’s designated carrier (or other point of delivery if another point of delivery has been agreed upon by Buyer and Seller in writing). An itemized packing slip referencing this Purchase Order number, the relevant part number and Seller catalog number, along with price, must be enclosed with each shipment. Failure to provide packing slips may result in excusable delay in processing Seller’s invoices. Buyer’s count shall be accepted as conclusive on all shipments not accompanied by a packing slip. Unless specified otherwise on this Purchase Order, this Purchase Order shall not be deemed separable as to the Goods and Services ordered herein.
11. Warranties. In addition to any warranty implied by fact or law, Seller expressly warrants all Goods to be new when delivered to Buyer or its designee, all Goods and Services to be free from latent or patent defects in design, workmanship and materials, to conform strictly to applicable specifications, drawings, and approved samples, if any, to be fit and suitable for the purpose intended, whether express or implied, and to be merchantable, and conveyed with title free and clear of liens or encumbrances, and without restriction on resale. Seller warrants that Goods and Services, and the use of Goods by Buyer, its affiliates and their customers and their respective successors and assigns, will not infringe, misappropriate or violate any United States or foreign patent, copyright, trade secret or trademark or similar proprietary or industrial right. Seller warrants that all Services furnished hereunder will be performed in a professional, workmanlike and competent manner in accordance with prevailing industry standards at the time and place performed. All warranties shall be in addition to all other warranties, express, implied and statutory and, together with all service warranties of Seller, shall run to Buyer, its successors, assigns and customers. Payments, inspections, tests, subsequent orders or acceptance of any Goods or Services shall not constitute waiver of any breach of warranty. All warranties shall be effective for one (1) year following the date of Buyer’s receipt of the applicable Good or provision of the Service, or, if longer, the minimum period required by applicable law in the jurisdiction where such Goods are leased or sold, or Services are provided.
12. Remedies. In the event of Seller’s breach of a warranty, Buyer may either return for credit or refund (as Buyer may specify), require prompt correction or replacement of the defective or nonconforming Goods or Services on terms satisfactory to Buyer, or engage a third party to correct or replace such Goods or Services in which case Seller shall be responsible for such costs of procurement and substitute Goods or Services. All returns hereunder shall be at Seller’s expense. For Goods not meeting any warranty or that are otherwise nonconforming, Seller will refund to Buyer all amounts paid by Buyer to Seller for such Goods, and will reimburse Buyer for its costs and expenses incurred in returning such Goods and for related costs and expenses incurred by Buyer, or payable by Buyer, with respect to Buyer’s customers who received such Goods. Any remedies exercised by Buyer under these terms and conditions are reserved, shall be cumulative and shall be additional to and without prejudice to any other or further remedies provided herein or in law or equity.
13. Indemnification. Seller shall defend (by counsel reasonably acceptable to Buyer), indemnify and hold harmless Buyer, its affiliates, and their respective employees, agents, officers, directors, successors and assigns, from and against any and all claims, losses, damages or expenses, and any other liabilities whatsoever, including without limitation, reasonable attorneys’ fees, arising from or by reason of any actual or claimed damages, and/or injuries, or any litigation based thereon, which may be incurred by Buyer with respect to Seller’s (a) breach of any of these terms and conditions, (b) negligence or willful misconduct, (c) violation of any applicable law, regulation, standard or certification (i) by Goods in the form delivered by Seller or (ii) by Seller, including any claim arising out of or caused by Seller’s manufacturing and supply activities. Indemnification obligations shall survive acceptance of the Goods or Services (as applicable) and payment therefor by Buyer. Seller shall not settle any claim with an admission of liability of Buyer, or that imposes any obligation, liability or compromise on Buyer, without Buyer’s prior written consent.
14. Insurance. Seller shall maintain at all times during the performance of labor or services for Buyer under this Purchase Order, workers’ compensation insurance with applicable statutory limits, employer’s liability with $1,000,000 limit, and comprehensive completed operations, automobile and contractual liability coverage with limits of $500,000/$1,000,000 bodily injury, and $500,000 property damage ($75,000 property damage –automobile), which coverage shall survive termination of the insurance for claims made for the effective period but subsequent to termination for a period of at least five (5) years, and which shall also provide for a retroactive date of placement coinciding with the date of the this Purchase Order. If requested by Buyer, Seller shall furnish an insurance certificate to Buyer evidencing the above coverage, endorsed to provide that Buyer shall be notified thirty (30) days prior to any substantial modification or termination of the subject policy up to the last date of delivery of goods or completion of performance or services, and for a period of two (2) years thereafter.
15. Drawings and Materials. information and materials including, but not limited to, drawings, specifications, mask works, art work, films, data or the like furnished by Buyer shall remain the property of Buyer and shall be held by Seller only for work being done for Buyer and shall be held in strict confidence. All materials, equipment and other supplies furnished by the Buyer on consignment for processing, repairs or other reasons shall remain the property of Buyer. Buyer does not guarantee the quality or suitability of such materials. Seller shall maintain in inventory control of all such materials and such items shall not be commingled with property belonging to Seller or others, except as such material may be incorporated into or attached to supplies consumed or expended in the performance of this Purchase Order. Seller shall return all such items to Buyer at the conclusion of the work, in good condition, or otherwise dispose thereof on Buyer’s instructions, at Buyer’s expense.
16. Seller Facility Inspection. Upon at least twenty-four (24) hour prior written notice, or shorter reasonable notice in the event of special cause, subject to Seller’s reasonable confidentiality, health and safety and security requirements, Buyer or its agent may inspect any Seller facility and any areas, equipment, and products relating to this Purchase Order, for purposes of confirming compliance with this Purchase Order. Buyer shall be entitled to at least one (1) inspection per calendar year. In addition, Buyer will be entitled to conduct reasonable For Cause Audits, with the scope of such an inspection to be agreed upon in advance by the parties. A “For Cause Audit” means any inspection conducted for various compelling reasons (including, but not limited to, non-conformance of Goods or Services, complaints and unfavorable regulatory action against Seller).
17. Liens. If this Purchase Order covers job site work, Seller shall be solely responsible for all claims of whatever nature arising out of non-payment for Services, labor and materials furnished or contracted for by Seller in performance of work hereunder, including all liens which may be levied against Buyer and its successors, assigns, and customers. Before final payments, or at any time upon Buyer’s request, Seller shall furnish Buyer with an affidavit conforming to the laws of the state in which the work is performed, or in absence of any such laws then an affidavit satisfactory to Buyer, setting forth the names and amounts due and remaining unpaid to all persons furnishing Services, labor or materials hereunder. Buyer shall have the right to pay directly to all Seller’s creditors all such amounts as may be due them and deduct same from payments due to Seller.
18. Confidentiality/Use of Buyer’s Data. This Purchase Order and its terms, the items listed in Section 15, and other information and materials furnished by Buyer to Seller shall be deemed confidential information of Buyer, shall be held in strict confidence by Seller and shall not be disclosed to any person or entity except employees of Seller who are bound to keep such information confidential. Upon Buyer’s request, Seller shall return all such information and materials, to the extent not consumed, and any such information and any copies and extracts thereof to Buyer.
19. Intellectual Property Rights. “Intellectual Property Rights” means all patents, trade secrets, confidential information, technology, trademarks, trade names, copyrights, moral rights, designs, drawings, discoveries, programming code (including source code), inventions (whether or not patentable), products, proprietary methodologies, procedures, improvements, developments, system documentation, information, materials made, conceived, developed or produced; rights of publicity, mask work rights, utility models, and other industrial or intangible property rights of a similar nature; all grants and registrations worldwide in connection with the foregoing and all other rights with respect thereto existing other than pursuant to grant or registration; all applications for any such grant or registration, all rights of priority under international conventions to make such applications and the right to control their prosecution, and all amendments, continuations, divisions and continuations-in-part of such applications; and all corrections, reissues, patents of addition, extensions and renewals of any such grant, registration or right. Any and all products, goods and tangible and intangible products and results of Services rendered by Seller to Buyer under this Purchase Order, including, but not limited to (a) any recommendations, ideas and business plans delivered or communicated to Buyer hereunder, (b) any written or computer coded materials manifested in documentation, systems design, disks, tapes, mask works, drawings, reports, specifications, notebooks, recommendations, data and memoranda, (c) any and all new inventions, techniques, processes and methodologies which are developed and any and all improvements, implementations and developments to existing inventions, techniques, processes and methodologies, and (d) all work in process relating to any of the aforementioned, including without limitation any deliverable for Buyer (collectively, “Work Product”) shall be solely owned by Buyer and the entire right, title and interest therein, for the United States and all foreign countries, shall be exclusively vested in Buyer upon the creation of such Work Product. The Work Product shall be considered works made for hire and made in the course of the Services rendered by Seller. To the extent that title to any such Work Product may not by operation of law vest in Buyer or any of them are held not to be works made for hire, Seller hereby irrevocably assigns and shall assign automatically upon its creation in the future without further consideration the sole right, title and interest in such Work Product and Seller’s Intellectual Property Rights therein to Buyer. All Work Product shall be confidential information of Buyer. Seller does not grant Buyer any right, title or interest in or to the proprietary methods or processes employed by Seller in performing this Purchase Order. Seller shall take such action (including, but not limited to, the execution, acknowledgment, delivery and assistance in preparation of documents or the giving of testimony) as may be requested by Buyer to evidence, transfer, vest or confirm the Buyer’s rights hereunder and to otherwise effectuate the intent of this Section.
20. Health and Safety. Seller represents and warrants that Goods furnished under this Purchase Order conform to and comply with all applicable standards pursuant to the Occupational Safety and Health Act of 1970, including but not limited to all provisions of the Hazard Communications Standard (29CFR1910.1200). Pursuant to same, Goods will be properly labeled and MSDSs for hazardous materials will be sent to Buyer prior to or with the shipment. It is the obligation of Seller to advise Buyer of any precaution necessary in the storage, handling and use of Goods purchased under this Purchase Order. Seller will furnish such information to Buyer about components of and materials in Goods so that Buyer may comply with its MSDS and other legal obligations.
21. Licenses. Seller represents and warrants that (a) it has obtained all consents, approvals, licenses, and assignments necessary to lawfully and properly perform all of Seller’s activities and obligations contemplated or required in this Purchase Order, for which any consent, approval, license, or assignment is required in the location or jurisdiction where any of such activities or obligations will be performed; and (b) Seller will maintain, as necessary, all such consents, approvals, licenses, and assignments, including without limitation any and all bonding, insurance, and other prerequisites for the same, at all times during the course of Seller’s performance under or related to this Purchase Order. It is a condition precedent to any obligation of Buyer to perform under this Purchase Order, or any contract resulting from this Purchase Order, that Seller shall obtain and maintain all such consents, approvals, licenses, and assignments, and Seller shall provide Buyer upon request at any time with proof of the same satisfactory to Buyer. Buyer shall have the right, but not the obligation, to verify any or all necessary consents, approvals, licenses, assignments, insurance, bonding, or other requirements at any time, and Seller shall reasonably cooperate with Buyer’s efforts to do so.
22. Assignment. Seller shall not assign, transfer, subcontract or delegate this Purchase Order under any circumstances, in whole or in part, to any person or entity without first obtaining written permission of Buyer. Any such assignment, transfer, subcontract or delegation without the prior written consent of Buyer shall, at Buyer’s option, be void.
23. Waiver. The Buyer’s exercise of any option or its failure to exercise any rights hereunder shall not constitute a waiver of its rights to damages for breach of contract and shall not constitute a waiver of any subsequent failure, delay, or breach by the Seller.
24. Government Regulation. In furnishing Goods or Services, Seller shall comply with all provisions of applicable national, federal, state and local statutes, rules, regulations, ordinances and orders of the United States or any other applicable country. Such compliance will include without limitation all applicable provisions of the Federal Food, Drug and Cosmetic Act, the Fair Packaging and Labeling Act, the Anti Kickback Act of 1986 as amended, the Toxic Substances Control Act and the Consumer Product Safety Act of the U.S.A. or any other regulations affecting Seller’s products or services. This Purchase Order may contain technical data as defined in ITAR Part 120.10, and may thus controlled by the U.S. Department of State, and thus export/re-export of this Purchase Order may require authorization from the Department of State via prior written approval, and Buyer disclaims all responsibility and liability for Seller’s international transfers and from Seller’s compliance with all export/import laws of all countries when Buyer is not the exporter of record. Seller warrants that all representations and certifications furnished by Seller as required by law or regulation in connection with this Purchase Order are accurate, current and complete as of the effective date of this Purchase Order, and that to Seller’s knowledge no person has been paid a kickback or illegal gratuity in connection with this Purchase Order. Seller shall indemnify and hold harmless Buyer, its affiliates, their customers, and its and their officers, directors, employees, agents, successors and assigns from and against any and all penalties and business interruptions resulting from Seller’s failure to comply with such regulations.
25. Dispute Resolution; Governing Law. This Purchase Order shall be construed under and governed by the substantive laws of the Commonwealth of Massachusetts, exclusive of its conflict of laws provisions. Buyer and Seller shall meet in good faith to attempt to resolve informally any disputes arising out of or in connection with this Purchase Order. If the parties are unable to resolve such disputes informally, either side may initiate legal action for relief including but not limited to specific performance and other injunctive and equitable relief. Venue shall be in the state and/or federal courts of Suffolk County, Massachusetts, which shall have exclusive jurisdiction over the subject of such disputes. In any action to enforce this Purchase Order, the prevailing party shall be awarded all court costs and reasonable attorney’s fees incurred, including such costs and attorney’s fees incurred in enforcing and collecting any judgment.
26. Miscellaneous. In the event any one or more of the provisions of this Purchase Order shall for any reason be held to be invalid, illegal or unenforceable, the remaining provisions shall be unimpaired. This Purchase Order, and any documents identified herein or attached by Buyer thereto, supersede all prior agreements and understandings between the parties, whether written or oral, relating to the subject matter hereof and is intended by the parties as the complete and exclusive statement of the terms of their agreement concerning the subject matter hereof. No modification, addition to, or waiver of any terms of this Purchase Order shall be effective unless in writing and signed by a representative of Buyer. Any notice relating to this Purchase Order shall be sufficiently given if sent in writing by registered or certified mail, postage prepaid, or by overnight commercial courier at recipient’s address. A notice shall be deemed received when the notice is turned over to a post office or a courier on the condition that the notice is actually delivered to the party to which the notice is addressed. Captions given to various sections herein are for convenience only. The parties’ relationship is solely that of independent contractors, and neither party has the right to bind the other party in any way. Seller shall not, without the prior written consent of Buyer, make any release of information concerning this Purchase Order or any other information related to the Buyer (other than to Seller’s employees and approved subcontractors that is required for the performance of their duties), including providing copies of this Purchase Order or identifying the Goods and Services sold by Seller to Buyer, nor use in any publicity, promotion, advertising or otherwise, any logo, name, trade name, service mark or trademark of the Buyer or its affiliates, or any simulation, abbreviation, or adaption of any of the foregoing, except as may be necessary to comply with a subpoena or other proper mandatory legal demand. Buyer may withhold such consent in Buyer’s sole and absolute discretion.
Rev. A – June 2019