1. Contract Authorization and Conditions. In these Terms and Conditions (“Terms”) “Seller” means the company supplying the Goods and “Buyer” means Joby Aero, Inc., or its affiliates. “Contract” means these Terms, any purchase order ("PO") issued by Buyer, Buyer’s Quality Terms and Conditions, and any additional documents included as part of the Contract or referenced herein. “Goods” means all deliverable goods, items, products, tools, materials, services, services products, equipment, or any other deliverables described in the Contract. For the avoidance of doubt, no portion of the Goods shall be deemed to be proprietary information and materials or confidential information of Supplier. Buyer and Seller may also be referred to herein as a “Party” or collectively as the “Parties.” Any terms proposed in the PO or modifications of these Terms are expressly rejected unless otherwise expressly agreed to in writing by Buyer. These Terms control the Contract and prevail over all other terms.
2. Delivery and Acceptance. Delivery terms are those referenced on the PO(s). Seller will arrange for and schedule delivery in accordance with the Contract. Time is of the essence, in accordance with the schedule outlined by Buyer as reflected in the PO or any resulting change order. Seller is expected to maintain 100% on-time delivery and 100% quality ratings. Should Seller fall below acceptable thresholds, Buyer will notify Seller of the deficiency and require corrective action. Buyer's remedies for any rejected Goods shall be in accordance with the provisions set forth herein.
3. Title and Risk of Loss. Title to Goods shipped under each PO passes to Buyer upon the earlier of (a) delivery of the Goods to Buyer, or (b) payment of the purchase price for such Goods. The Goods shall be delivered free and clear of all liens, security interests, claims, encumbrances, or other restrictions. Notwithstanding any agreement between Buyer and Seller concerning transfer of title or responsibility for shipping costs, risk of loss passes to Buyer upon receipt and acceptance by Buyer at the specified delivery location, and Seller will bear all risk of loss or damage to the Goods until Buyer’s receipt and acceptance of such Goods in accordance with the terms hereof.
4. Price. The price payable for the Goods will be the price set in the PO and shall be in United States Dollars, and no adjustments to any prices will be made for changes to, or fluctuations in, currency exchange rates The price for the Goods shall be inclusive of all taxes (including, but not limited to, sales, use, excise, value-added, and other similar taxes), duties, or levies which are the responsibility of the Buyer and the Buyer will pay all costs and charges related to packaging (other than standard packaging provided by Seller), loading, unloading, carriage, freight and insurance where appropriate.
5. Payment Terms and Invoices. Payment for the Goods is due thirty (30) calendar days after the date of Seller’s invoice. The Buyer shall pay the amount stated in each Seller’s invoice. If Buyer is delinquent in in its payment obligation, Seller may, upon written notice to Buyer, stop work and withhold future shipments until all undisputed delinquent amounts are paid.
6. Warranties. Seller warrants for a period of forty-eight (48) months after acceptance of Goods by Buyer all Goods furnished under this Contract shall conform to all specifications and requirements and shall be free from defects in materials and workmanship. To the extent Goods are not manufactured pursuant to designs and specifications furnished by Buyer, the Goods will be free from design and specification defects. This warranty shall survive inspection, test and acceptance of, and payment for, the Goods. This warranty shall run to Buyer and its successors, assigns and customers. The duration of this warranty and the remedies available to Buyer for breach of this warranty shall include rework or replacement of any noncompliant Goods. Nothing in this warranty shall be construed to limit any rights or remedies Buyer may otherwise have under statute or other provisions of the Contract.
7. Insurance. Seller will carry insurance policies covering commercial general liability, product liability, auto liability, errors & omissions / professional liability/cyber, and worker's compensation in reasonable and customary amounts seen in Seller's industry, with a reputable and solvent insurance company insuring goods of the type of Goods provided by Seller, against all losses, and Seller will give evidence of such a policy to Buyer, upon request. If Seller fails to obtain or maintain insurance, Buyer may, but will not be obligated to, cause such insurance to be issued and the amount of any premiums paid by Buyer will be payable by Seller to Buyer on demand.
8. Changes. Where reasonably necessary or appropriate to ensure the continued production of Buyer’s aircraft, Buyer may, by written notice to Seller, make changes to the Goods within the general scope of this Contract. Seller will promptly implement all changes following receipt of written notice, notwithstanding any pending negotiation over any equitable adjustment of price or schedule because of such change.
9. Termination for Convenience. Buyer may terminate all or part of this Contract or any PO for convenience by written notice to Seller. The notice of termination will specify the effective date and the Goods involved. Upon receipt of such written notice of termination, and unless otherwise directed by Buyer, Seller will immediately stop work on all specified Goods and terminate sub-tier contracts and purchase orders relating to the Goods terminated, as applicable and take such other action as, in Buyer’s opinion, may be necessary, and as Buyer will direct in writing, to complete performance of the work not terminated.
10. Termination for Cause. The occurrence of any of the following events will constitute an “Event of Default” and Buyer may terminate the Contract for cause: (a) any failure by Seller to deliver, when and as required by the Contract any Goods; (b) any failure by Seller to perform or comply with any obligation as set forth in this Contract and such failure continues unremedied for a period of ten (10) days; (c) any failure of a Good installed onto Buyer's products(s); (d) the suspension, dissolution or winding-up of Seller’s business; (e) any event causing Seller’s insolvency, suspected insolvency, inability to pay debts, or nonpayment of debts; (f) any assignment by Seller for the benefit of its creditors; (g) Seller ceases, or threatens to cease, to carry on business; or (h) Buyer reasonably believes that any of the events mentioned above is about to occur in relation to Seller and Buyer has notified Seller accordingly. Furthermore, in the event of termination for cause of this Contract, Buyer may, at its option, terminate any or all other agreements between Buyer, or its affiliates, and Seller. Any use of any remedy specified herein is not exclusive and will not deprive Buyer of, nor limit the application of, any other remedy provided by law, at equity or otherwise. Any partial termination of a PO will not alter or affect the terms and conditions of this Contract or change any prices for Goods not terminated.
11. Remedies. If any Event of Default occurs, all costs, expenses, and loss of value incurred as a result of or in connection with nonconformance and repair, replacement or other correction, may be recovered by Buyer from Seller by equitable price reduction or credit against any amounts that may be owed to Seller under this Contract, or otherwise. No failure on the part of Buyer in exercising any right or remedy hereunder, or as provided by law or in equity, shall impair, prejudice, or constitute a waiver of any such right or remedy, nor shall be construed as a waiver of any Event of Default or as acquiescence therein. No single or partial exercise of any such right or remedy shall preclude any other or further exercise thereof or the exercise of any other right or remedy. No acceptance of partial payment or performance of any of Seller’s obligations hereunder shall constitute a waiver of any Event of Default or a waiver or release of payment or performance in full by Seller of any such obligation. All rights and remedies of Buyer hereunder and at law and in equity shall be cumulative and not mutually exclusive and the exercise of one shall not be deemed a waiver of the right to exercise another. Nothing contained in this Contract shall be construed to limit any right or remedy. Buyer may also, in its sole discretion, implement or require one or more of the following: cancellation of the Contract, use itself or a third party to manufacture, produce, provide, or rework the Goods, require Seller to transfer title of the Goods or other manufacturing materials to Buyer, setoff any amounts owed to Seller from Buyer.
12. Liquidated Damages. In addition to and not in lieu or limitation of the foregoing or Buyer’s other rights and remedies under this Contract or at law or in equity, Buyer may choose, in its sole and absolute discretion, to require Seller to pay Buyer liquidated damages in the manner specified below as a genuine estimate of the losses that would be suffered by Buyer as a result of any delay by Seller. In the event Seller causes a delay by missing a date set forth in any statement of work ("SOW") or PO, liquidated damages will be calculated as follows: (i) Subject to a grace period of seven (7) business days, liquidated damages will be in an amount that is equal to 1% of the aggregate value of the corresponding PO per day of delay by Seller. The Parties acknowledge the nature and actual amount of costs associated with Seller’s failure to strictly comply with its timing obligations are uncertain and difficult to calculate, and agree the amount set forth in this Section represents a reasonable estimate of the additional costs to be incurred by Buyer as a result of any delay by Seller. The Parties further acknowledge liquidated damages payments are not intended as a penalty but are in lieu of the actual damages measured by such costs. Buyer’s choice to recover such liquidated damages for any delay by Seller by the date set forth in any SOW or PO on any one or more occasions will not preclude Buyer from recovering the actual costs incurred due to any delay on any other occasion, including without limitation any additional costs incurred by Buyer engaging other persons to manufacture, produce, or provide Products or Services that would have been manufactured, produced, or provided by Seller. Buyer’s failure to timely claim liquidated damages for any such delay by Seller will not operate as a waiver of such liquidated damages and Buyer will be entitled to retroactively claim such liquidated damages at any time at a later date. Buyer’s exercise of its rights under this Section will not preclude Buyer from exercising its option to terminate the Contract for an Event of Default by Seller, even if Seller has paid such liquidated or actual damages to Buyer on prior occasions.
13. Confidentiality. “Proprietary Information” means: (i) any information, technical data or know-how in whatever form, tangible and intangible, including, but not limited to: inventions, know-how, information regarding research, development, or other improvements, (ii) business related information including but not limited to forecasts, strategies, financial information, pricing, manufacturing, marketing, or procurement requirements; (iii) the terms and conditions of any proposed or actual agreement or PO between the Parties, including this Contract; (iv) business policies or practices; (v) the information or other data of others that is received by the Buyer under an obligation of confidentiality; and (vi) all other summaries and compilations of information, which relate in any way to the business of Buyer. Seller will keep all Buyer’s Proprietary Information disclosed hereunder confidential for a period of ten (10) years following the expiration or termination of this Contract. The Buyer will retain ownership of its Proprietary Information including, without limitation, all rights in patents, copyrights, trademarks, and trade secrets. Except as expressly granted herein, no right or license is granted hereby to Seller or its customers, employees or agents, expressly, or by implication, with respect to the Proprietary Information or any patent, patent application, or other proprietary right of the other Party, notwithstanding the expiration of the confidentiality obligations stated herein. Seller shall keep confidential and shall not, without the prior written consent of Buyer, make public in any manner, the existence of this Contract, or otherwise disclose any other Proprietary Information of the Buyer. The use of the Buyer’s Proprietary Information by the Seller shall be for the sole purpose of this Contract. The Seller agrees not to make or allow to be made any copies of, or otherwise reproduce, the Buyer’s Proprietary Information, except as expressly permitted by the Buyer. Any action to reverse engineer or otherwise decompile, disassemble, modify, or make derivative works of the Buyer’s Proprietary Information is strictly prohibited. The Seller agrees that all Proprietary Information received from the Buyer will be treated with at least the same degree of care that the Seller uses in the protection of its own confidential or proprietary information, which in any event shall at least be in a reasonable and prudent manner. All Proprietary Information shall only be disclosed to employees of the Seller who need to either evaluate or use the Proprietary Information for the purposes of this Contract. All Seller employees who are provided access to the Buyer’s Proprietary Information must be subject to confidentiality obligations that are at least as restrictive as those set forth herein. The Seller’s confidentiality obligations, and liabilities for any breach thereof, shall survive any termination or completion of this Contract.
14. Indemnity. Each Party shall indemnify the other Party against any third-party liability or claim for personal injury or damage to property arising solely from any negligent act or omission of the other Party, its employees or agents, save to the extent that such liability, loss, cost, expense, damage or injury is due to the negligent acts and/or omissions of the other Party.
15. Indemnification by Seller. Seller will indemnify and hold Buyer and its related parties from and against all losses arising out of or in any way related to this Contract and or the performance thereof by Seller or any sub-tier of Seller or other third parties, including, without limitation, the provision or use of the Goods. In no event will Seller’s obligations hereunder be limited to the extent of any insurance available to Seller or any sub-tier of Seller. Seller expressly waives any immunity under industrial insurance, whether arising out of statute or other source.
16. Relationship of Parties and Publicity. Buyer and Seller are independent contractors, and nothing in the Contract makes either party the agent or legal representative of the other party for any purpose. Neither party has authority to assume or create any obligation on behalf of the other party. Neither Party or any of their sub-tiers, suppliers, or subcontractors will release any publicity, advertisement, news release, denial or confirmation, or disclose to any third party, any information regarding this Contract or the Goods provided under this Contract without the other Party’s advance written agreement. A breach by Seller of this Section shall incur a payment penalty to Buyer in the amount of fifty percent (50%) of the total annual spend by Buyer of Seller's Goods, and Buyer shall be entitled to recoup all costs incurred in seeking an injunction or reparations by Seller's breach. Any materials provided to a third party in furtherance of Buyer's obligations in certifying its products, or as an inadvertent inclusion in the background of any materials provided to a regulatory agency or related third party, shall be excluded from this prohibition.
17. Compliance with Laws. Each Party hereby represents and warrants that it shall comply in all respects with the laws and regulations applicable to the manufacture and use of the Goods to be supplied under this Contract.
18. Assignment and Waiver. Neither Party will assign any rights or obligations under this Contract without the advance written consent of the other Party, which consent will not be unreasonably withheld. Any attempt to assign or delegate in violation of this clause will be void. The failure of either Party to enforce any of the provisions of this Contract, at any time, will not be construed to be a continuing waiver of any provisions of this Contract.
19. Governing Law and Disputes. The validity, interpretation, and performance of this Contract shall be governed by the laws of the State of California (without reference to the conflict of law principles thereof that would result in the application of the internal laws of any other jurisdiction), excluding the United Nations Convention on Contracts for the International Sale of Goods. Any dispute arising under this Contract which is not settled by agreement of the Parties shall be settled by appropriate legal proceedings subject to the exclusive jurisdiction of the courts of the State of California.
20. Severability and Survival. If at any time any part of this Contract (including one or more of the clauses or any sub-clause or paragraph of any clause) is determined to be void or otherwise invalid or unenforceable for any reason under any applicable law or regulation, the same shall be deemed omitted from this Contract and the validity and enforceability of the remaining terms of this Contract shall not be affected in any way as a result of that omission, provided such omission does not void the original commercial intent of the Contract. Sections 3, 6, 11, and 12-16 survive expiration or termination of this Contract.
21. Entire Contract. This Contract, including all change orders, attachments, exhibits, supplements, specifications, schedules, and including incorporation of referenced customer flow down and U.S. Government contractual requirements, constitutes the entire agreement between the Parties hereto pertaining to the subject matter hereof, and there are no oral understandings, representations or warranties affecting it. This Contract supersedes any and all prior agreements, understandings, and communications between the Buyer and Seller related to the subject matter of this Contract. Neither course of performance nor course of dealing nor usage of trade shall be used to interpret, construe, qualify, explain, or supplement any of the terms of this Contract. This Contract shall not be amended except in writing signed by the Parties.
