Standard Terms and Conditions of Purchase
1. REVOCATION AND EFFECT OF ORDER. NIO USA, INC. (“NIO”) may revoke this purchase order this (“Order”) at any time prior to NIO’s receipt of written acceptance by Seller. This Order expressly limits acceptance to the terms of this Order and NIO hereby rejects any different or additional terms contained in Seller’s offer or response to this Order. The terms of this Order are the sole and exclusive terms on which the Parties shall be bound.
2. DELIVERY. Time is of the essence in this Order. Seller shall promptly inform NIO of any anticipated delay in delivery. In the event that Seller’s delivery of goods (“Goods”) or rendering of services (“Services”) is not completed when due, NIO, in addition to all other rights and remedies it may have, may terminate the Order, purchase substitute items or services elsewhere and charge Seller with any loss incurred.
3. SHIPPING INSTRUCTIONS. Unless otherwise specified on the face hereof, all Goods shall be packaged by Seller in suitable containers to permit safe transportation and handling. Each delivered container must be labeled and marked to identify contents without opening, and all boxes and packages must contain packing sheets listing contents. NIO’s purchase order number must appear on all shipping containers, packing sheets, delivery tickets, and bills of lading.
4. TITLE AND RISK OF LOSS. Unless otherwise specified on this Order, Goods shall be delivered DDP NIO’s location designated on the face hereof, at which time title and risk of loss on the Goods shall pass to NIO. If any of the ordered Goods are destroyed or materially damaged prior to the time risk of loss passes to NIO, NIO may cancel this Order as to the destroyed or materially damaged Goods or require the prompt delivery of substitute Goods of equal quantity and quality.
5. PRICE AND PAYMENT. The price to be paid by NIO for the Goods and Services shall be that stated on the face hereof. Seller may invoice NIO upon NIO’s receipt and acceptance of Goods and Services, and invoices are due ninety (90) days from the date of invoice, unless otherwise specified on the face hereof. Unless otherwise specified on the face hereof, the price of the Goods includes all shipping charges, taxes, VAT, duties and packaging.
6. INSPECTION. Payment for the Goods and Services shall not constitute acceptance thereof. NIO shall have the right to inspect such Goods and Services, to reject any Goods and Services which are in NIO's judgment defective or nonconforming and to require replacement and/or re-performance as well as payment of damages. NIO may return rejected Goods to Seller at Seller’s expense and, in addition to NIO's other rights, NIO may charge Seller all expenses of unpacking, examining, repacking and reshipping such Goods. Nothing contained in this Order shall relieve the Seller from the obligation of testing, inspection and quality control.
7. WARRANTIES. Seller warrants that (a) the Goods and Services shall conform to applicable specifications, including but not limited to Seller’s published specifications and specifications issued by NIO, (b) the Goods will be new, will be free from defects in material or workmanship, will conform to any statements made on the containers or labels or advertisements for such Goods, will conform in all respects to samples, and will be adequately contained, packaged, marked, and labeled, (c) the Goods and Services do not and shall not infringe upon any patent, copyright, trademark, trade secret or other proprietary right of any third party, and (d) the Services shall be performed in a professional manner by qualified personnel trained and skilled in the performance of the specific services involved. Further, if the Goods or Services include software, Seller warrants that (a) software provided under this Order (“Software”) conforms to the documentation accompanying the Software, (b) the Software does not contain any malicious code such as viruses, trap doors, time bombs and other intentionally destructive or disabling code, (c) any time the Software is delivered to NIO, whether delivered via electronic media or the internet, no portion of the Software or the media upon which it is stored or delivered has any type of software routines or other element which will do or permit any of the following: unauthorized access to or intrusion upon, disabling of, erasure of or interference with any hardware, software, data or peripheral equipment, and (d) Seller has the right to provide all third party software, if any, contained in the Software. Seller warrants that the Goods and Services will be merchantable, and will be safe and appropriate for the purpose for which Goods or Services of that kind are normally used. If Seller knows or has reason to know the particular purpose for which NIO intends to use the Goods or Services, Seller warrants that such Goods or Services will be fit for such particular purpose. Seller shall extend all warranties it receives from its vendors to NIO. Inspection, test, acceptance or use by NIO of the Goods or Services shall not affect the Seller's obligation under the foregoing warranties. Seller's warranties shall run to NIO, its successors, assigns and customers, and users of products sold by NIO. Seller understands that the Goods and Services may be used by NIO in its products and agrees that every warranty provided by Seller with respect to any such Goods or Services will remain in effect until not less than two years after such Goods or Services are placed in service. If any Goods or Services do not conform to the warranties set forth in this paragraph, at NIO’s option, Seller shall (a) promptly correct defects of any Goods or Services not conforming to the warranties or replace or re-perform nonconforming Goods or Services with conforming Goods or Services, without expense to NIO, (b) refund to NIO the amount paid by NIO for such Goods or Service, or (c) pay NIO for the cost incurred by NIO in making corrections or replacing such Goods and Services. The express warranties and remedies set forth in this paragraph are in addition to all other warranties, rights and remedies provided under applicable law.
8. INDEMNITY. Seller agrees to indemnify, defend and hold NIO, its employees, officers, directors, stockholders, affiliates, representatives, agents, subcontractors and customers harmless from and against any and all claims, actions, losses, expenses, damages, penalties, fines, liabilities, judgements and settlements, costs and expenses, including attorneys’ fees, arising out of, relating to or resulting from any (a) personal injury or property damage caused by the Goods or Services, (b) breach of warranties or defects in the Goods or Services, or (c) act, omission or negligence of the Seller, its agents, employees or subcontractors.
9. CHANGES. NIO shall have the right at any time to make changes in drawings, designs, specifications, materials, packaging, time and place of delivery, quantity, method of transportation or any other changes. If any such changes cause an increase or decrease in the cost, or the time required for the performance, an equitable adjustment shall be made and the Order shall be modified in writing accordingly.
10. TERMINATION AND REMEDIES. NIO shall have the right to terminate this Order or any part hereof for cause in the event Seller breaches any terms of this Order. Late deliveries, deliveries of Goods or Services which are defective or which do not conform to this Order, and failure to provide NIO, upon request, with reasonable assurances of future performance shall all be breaches allowing NIO to terminate this Order for cause. NIO shall have no liability to Seller on account of, and Seller shall be liable to NIO for any and all damages sustained by reason of the breach which gave rise to, the termination for cause. NIO reserves the right to terminate this Order or any part hereof, at any time, without cause. Upon receipt of any notice of termination, Seller shall immediately stop all work hereunder and cause all its suppliers or subcontractors to cease work. In the event of any termination by NIO without cause, Seller shall be entitled to a portion of the order price reflecting the Goods or Services provided prior to the notice of termination, plus actual additional direct costs resulting from termination. In no event shall Seller be entitled to payment for any work done after receipt of notice of termination.
11. PROPRIETARY INFORMATION AND CONFIDENTIALITY. All information and intellectual property furnished to Seller by NIO, including but not limited to this Order and its contents, drawings, specifications, and/or software and all information and intellectual property derived therefrom, regardless of the form or media in or by which it is furnished (herein collectively “Information”), constitutes the confidential and proprietary information of NIO. Seller agrees to use adequate security measures to maintain the confidentiality of the Information and not to disclose or transfer any Information to any third party, or to any employee not directly employed in the performance of the work under this Order. Seller agrees not to use any Information except in connection with its performance of this Order.
12. PERSONAL INFORMATION AND PRIVACY LAW. In the event Seller accesses, collects, uses, stores, transfers or otherwise handles any personal information in connection with this Order (“Personal Information”), Seller agrees as follows: Seller shall comply with all applicable data or privacy protection laws in the access, collection, use, storage, transfer or other handling of Personal information in connection with this Order. Seller shall keep all Personal Information confidential and shall use such information only for the purpose of providing the Goods and Services hereunder. Seller shall not sell or share any Personal Information with any third party, or combine the Personal Information with any other personal information. Seller shall return or destroy all such information upon completion of the services. Seller shall implement appropriate technical and organizational security measures, which shall ensure a level of security appropriate to the risk including, as appropriate, (i) pseudonymisation and encryption; (ii) the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; (iii) the ability to restore the availability and access to the Personal Information in a timely manner in the event of a physical or technical incident; and (iv) a process for regularly testing, assessing and evaluating the effectiveness of those measures. Seller grants NIO the right to help ensure that Seller uses Personal Information consistent with Seller’s obligations under applicable data protection laws, and Seller will notify NIO of an inability to comply with such laws. Seller grants NIO the right to stop and remediate any unauthorized use of Personal Information. Seller will assist NIO in responding to any requests by NIO employees or consumers under any applicable data protection laws. Seller will permit NIO to monitor Seller’s compliance with these data protection terms at NIO’s discretion through (a) ongoing manual compliance reviews; (b) annual audits; and (c) technical testing. Seller will inform NIO of the use of any subcontractor(s), and require each subcontractor to agree, by contract, to the prohibitions above. Seller will ensure that subcontractors certify they will abide by the above prohibitions relating to Personal Information.
13. OWNERSHIP OF MATERIALS SUPPLIED BY NIO. All tools, equipment, parts and other materials supplied by NIO to Seller shall remain the sole property of NIO.
14. PROPRIETARY RIGHTS. Seller hereby agrees that all information, data, reports, studies, charts, drawings, plans, diagrams, presentations and any other tangible or intangible information, work product to be delivered, and all inventions, discoveries, specifications, designs, methods, business processes or models, devices, writings, compilations of information, and/or materials developed or produced under this Order that are protectable as intellectual property whether under the laws of patent, copyright, trade secret, mask works, and/or the common law or other forms of intellectual property protected by the law (collectively the “Work Product”), shall be the sole and exclusive property of NIO and shall be deemed, where applicable, “works for hire” of which NIO shall be deemed the author. In furtherance thereof, Seller hereby irrevocably grants, assigns and transfers to NIO all rights, title and interest of any kind, in and to the Work Product produced hereunder. Seller shall be entitled to make no use of the Work Product, except as may be expressly permitted in this Order or otherwise agreed to by the parties in writing. The foregoing assignments shall include, among other things, existing or prospective intellectual property and proprietary rights in all foreign countries. In the event that any Work Product is based upon one or more pre-existing intellectual property rights (hereinafter referred to as “Pre-existing Work”), except as otherwise agreed in writing, Seller hereby grants to NIO, its successors and assigns an irrevocable, non-exclusive, worldwide, assignable, transferable, royalty-free right and license to use, make, have made, import, have imported, sell, offer for sale, display, distribute, have distributed and to otherwise commercially exploit the Pre-existing Work in connection with such Work Product. Seller agrees to execute upon Customer’s request a signed agreement or form assigning rights to NIO for any Work Product. Seller shall execute, verify and deliver such document or form and perform such other acts (including appearances as a witness) as NIO may reasonably request for use in applying for, obtaining, perfecting, evidencing, sustaining and enforcing all intellectual property and proprietary rights in the Work Product and the assignment thereof. Except as otherwise agreed in writing, nothing in this Order shall affect either Party’s ownership rights of any intellectual property which is pre-existing at the date of this Order or subsequently brought into existence other than as a result of the performance of this Order.
15. INFRINGEMENT INDEMNIFICATION. Seller agrees upon receipt of notification from NIO to indemnify, defend and hold harmless NIO, its agents, customers or other vendors from and against all suits, proceedings, claims, causes of action, liabilities, losses, costs and expenses (including reasonable attorneys’ fees, royalties, damages, and settlements) arising from the alleged or actual violation, infringement or misappropriation of the patent, copyright, trademark, trade secret or other intellectual property or proprietary rights of any third party or alleged unfair competition, resulting from the sale or use of any Goods or Services furnished or supplied by Seller hereunder. NIO may be represented by and actively participate through its own counsel in any such suit or proceeding if it so desires.
16. INDEPENDENT CONTRACTOR; INSURANCE. Seller agrees that all work shall be done as an independent contractor and that the persons doing such work shall not be considered employees of NIO. Seller shall observe the highest safety standards in performing any work on the premises of NIO or NIO’s customers, and shall maintain all necessary insurance coverage, including but not limited to Workers’ Compensation Insurance to statutory limits, with a minimum coverage of US$500,000 per occurrence, primary comprehensive general liability insurance with a minimum coverage of US$500,000 per occurrence, and primary comprehensive automobile liability insurance with a minimum coverage of US$300,000 per occurrence. NIO, its subsidiaries, parents, affiliates, and predecessor entities must be named as Additional Insureds. Seller shall furnish certificates evidencing such insurance at NIO’s request. Seller shall indemnify and save harmless and defend NIO from any and all claims or liabilities arising out of any such work, and shall be solely responsible for any deductible provisions of its insurance, any loss or damage in excess of the policy limits, and/or any loss or damage not covered by insurance. The defense and indemnification obligations under this paragraph shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for Seller or a subcontractor of Seller under any workers’ or workmen’s compensation acts, disability benefit acts or other employee benefit acts.
17. PUBLICITY. Seller agrees not to make any public disclosure, except as may be required by law, relating to NIO or this Order, without obtaining the express prior written consent of NIO.
18. WAIVER. No claim or right arising out of the breach of this Order by Seller can be discharged by a waiver of the claim or right by NIO unless the waiver is supported by consideration and is in writing signed by NIO.
19. ASSIGNMENT. Seller shall not assign its rights or obligations under this Order without the advance written consent of NIO. NIO may assign its rights under this Order to a subsidiary, affiliate or successor in interest upon written notice to Seller.
20. SETOFF. All claims for money due or to become due from NIO shall be subject to deduction or setoff by NIO by reason of any counterclaim arising out of this or any other transaction with Seller.
21. LIMITATION OF LIABILITY. In no event shall NIO be liable for any special, incidental, indirect or consequential damages (or equivalents thereof no matter how claimed, computed or characterized) arising out of or in connection with this order or NIO’s performance or breach hereof, regardless of whether any such liability shall be claimed in contract, warranty, equity, tort (including negligence, gross negligence and strict tort liability) or otherwise.
22. COMPLIANCE WITH LAWS. Seller shall comply with all applicable laws concerning the materials, content, and the manufacture and distribution of Goods and Services, and shall ensure that its activities in performance of this Order shall not cause NIO to be in violation of any laws.
23. SURVIVAL. The provisions of these terms and conditions shall, where the context so requires, continue in full force and effect notwithstanding any termination or suspension or the issuance of any payment.
24. MISCELLANEOUS. This Order shall inure to the benefit of and be binding upon the successors, legal representatives and assigns of the parties hereto. This Order is severable such that the invalidity or unenforceability of any part or provision shall not affect the validity or enforceability of any other part or provision.
25. DISPUTE RESOLUTION. Any dispute arising out of or relating to this Order shall be settled by binding arbitration before the Judicial Arbitration and Mediation Services (“JAMS”) under the applicable rules and procedures of JAMS, and California law shall apply. This clause shall not preclude the parties from seeking provisional remedies from a court of appropriate jurisdiction. The mandatory site for arbitration shall be San Jose, California. The parties hereby knowingly and voluntarily, and having had an opportunity to consult with counsel, waive all rights to trial by jury.
26. ENTIRE AGREEMENT. This Order, including the provisions on its face and these Standard Terms and Conditions of Purchase contain the entire agreement between the parties concerning the purchase and sale of the Goods and Services. Except to the extent NIO has relied upon statements and writings of Seller and Seller’s agents in connection with this Order, there are no oral understandings, representations, or agreements relative to this Order which are not fully expressed herein.