Terms and Conditions of Purchase
Acceptance
This purchase order (“PO”) and all terms and conditions below (“PO Terms”) must be accepted as written and may either be accepted by the vendor identified on the PO (“Vendor”) (1) by written or electronic acknowledgment provided to Ouraring Inc., a Delaware corporation with offices at 415 Kearny Street, San Francisco, CA 94108, or Oura Health Oy, a Finnish limited company with offices at Elektroniikkatie 10, 90590 Oulu, Finland, or any affiliate or subsidiary of the foregoing issuing the PO to which these PO Terms are attached or referenced (individually and collectively, “Oura”), or (2) by Vendor’s or its designee’s commencement of performance, including invoicing or delivery of the goods or services purchased hereunder. After acceptance, the PO and the PO Terms, with any attachment provided by Oura, and such portions of Vendor’s quote that are not inconsistent with the terms of these PO Terms or the PO will conclusively constitute the entire agreement of the parties, to the exclusion of all other terms. Any addition to, change in, modification of, revision of, or waiver of these PO Terms or the PO will be invalid and rejected unless specifically agreed to in writing by Oura. Oura objects to any additional or different terms that may be contained in Vendor’s quotes, statements of work, proposals, or other offers, howsoever made. For clarity, these PO Terms will not apply to the extent Vendor and Oura have agreed to separate written terms and conditions signed by both Vendor and Oura, and previously reviewed and approved by Oura’s legal department.
Payment Terms; Prices
Payment terms will be as noted on the PO, and, if no payment terms are there noted, are net thirty (30) days from Oura’s receipt of a correct invoice. Should a prepayment be mutually agreed in writing and noted on the PO, Vendor will be required to submit a preliminary invoice showing this PO number, cost, quantity, and scheduled ship date (if applicable) to Oura. In no event will Oura be liable for any late fees or penalties. Vendor will maintain accurate records of all amounts invoiced to and payments made by Oura hereunder. If Oura informs Vendor of verified incorrect billing to Oura, then Vendor will reimburse Oura for any amounts over-billed to Oura within thirty (30) days of notice of such amounts. Oura will not be billed at prices higher than those stated on the PO unless other prices are specifically agreed to in writing by both parties. The prices on the PO will include all taxes except those which Vendor is required by law to collect from Oura. Such taxes, if any, will be separately stated in Vendor’s invoice and will be paid by Oura unless an exemption is available. At Oura’s request, Vendor will provide a non-binding tax quote to assist Oura with budgeting planning. In no event will Oura be invoiced or pay for any taxes related to Vendor’s business income, employees, or facilities, including real estate taxes.
Delivery of Goods
If Vendor is supplying hardware, equipment, appliances, finished products, components, materials, or other supplies or items of a physical or tangible nature (collectively, “Goods”), Vendor will ship all Goods DDP (Delivery Duty Paid) per Incoterms 2020, unless alternative shipping arrangements are noted on the PO and/or are expressly approved by Oura. Unless Oura has agreed to pay for the following charges, and the charges are expressly noted on or included in the PO, Vendor will be responsible for all costs of shipment, carriage costs, logistics, transportation, packing, packaging, insurance, and import duty and taxes associated with the delivery of the Goods at Oura’s receiving/delivery facilities noted on the PO. Vendor will pay delivery charges in excess of those that Oura has agreed to pay, as noted on the PO. Goods must be shipped by the date requested on the PO but may not be shipped more than one week in advance of the time(s) specified herein without Oura’s prior approval. If Vendor’s shipments of Goods fail to meet a requested or required delivery schedule, Oura, without limiting any other rights or remedies that it may have in law or in equity, may direct expedited routing of such shipments and any excess costs incurred as a result thereof will be debited to Vendor’s account. When more than one shipment is made against this PO at Oura’s request or with Oura’s approval, the invoice and shipping papers accompanying the last shipment must indicate which is the final shipment. Oura will not be obligated to accept untimely, excess, partial, or under shipments, and such shipments in whole or in part may, at Oura’s option, be returned to Vendor, or held for disposition at Vendor’s expense and risk. Oura will not be liable for Vendor’s commitments or production arrangements in excess of the amount or in advance of the time necessary to meet Oura’s delivery schedule. Substitutions of Goods will not be accepted without Oura’s prior written consent. Vendor will bear all risk of loss of all Goods covered by this PO until such goods have been delivered to Oura’s designated location.
Inspection of Goods
Goods ordered hereunder may be subject to inspection and testing by Oura at reasonable times and places. If the Goods delivered do not meet the Vendor’s standard specifications or the specifications agreed to in writing by Oura, or if they otherwise do not conform to applicable legal, industrial, regulatory, or manufacturing standards required for Goods of this type, Oura will have the right to reject them. Goods that have been delivered and rejected in whole or in part may, at Oura’s option, be returned to Vendor for reimbursement, credit, or replacement, or may be held for disposition, in each case at Vendor’s expense and risk.
Services
If the PO includes or requires Vendor’s performance of services of any kind (“Services”), then Vendor will perform such Services in accordance with the specifications agreed in writing with Oura, including but not limited to, in a statement of work (“SOW”), within the time frames noted in the SOW (excluding delays caused by Oura), and will provide such items, materials, reports, or other deliverables noted on the SOW (“Deliverables”) in compliance with the technical or other specifications noted on the SOW. Upon payment, all right, title, and interest in and to the Deliverables, including all intellectual property rights therein shall be in Oura. If Deliverables contain any intellectual property owned or licensed by Vendor, then on delivery of the Deliverable, Vendor grants to Oura a non-exclusive right and license to use the same as part of the Deliverable within the intended scope of use of the Deliverable noted on the SOW and for the period noted therein, or if no scope is noted therein, for Oura’s lawful business use, which may include, but is not limited to, Oura’s internal operations, manufacturing of Oura’s products, or use as part of Oura’s commercially available software applications. If a Deliverable includes any intellectual property of Oura or its licensors, or are a modification, translation, extension, or derivative work of the foregoing, then Vendor obtains no right, title or interest in such intellectual property (except the limited right to use the same as directed and made accessible by Oura solely for the purpose of performing the Services for Oura and preparing the Deliverables for Oura), and any right, title or interest as may vest in Vendor by operation of law or otherwise in the foregoing is hereby assigned and transferred to Oura and its licensors, as applicable.
Representations and Warranties
Vendor represents that it has the full power and authority, and all intellectual property and other rights, consents, approvals, and authorizations to provide Oura with Goods, Services, and Deliverables furnished hereunder for Oura’s intended authorized use. VENDOR WARRANTS THAT (1) GOODS, SERVICES AND DELIVERABLES FURNISHED HEREUNDER WILL CONFORM TO APPLICABLE SPECIFICATIONS AGREED TO IN WRITING WITH OURA, (2) GOODS WILL BE MERCHANTABLE, OF GOOD MATERIAL AND WORKMANSHIP, FREE FROM DEFECTS, FIT AND SUFFICIENT FOR THE PURPOSES INTENDED BY OURA, AND FREE FROM ALL LIENS AND ENCUMBRANCES, (3) SERVICES WILL BE PERFORMED BY SKILLED PERSONNEL IN A PROFESSIONAL AND WORKMANLIKE MANNER, AND (4) ANY SOFTWARE OR HARDWARE OR COMPONENTS WILL BE WARRANTED FOR THE LONGER OF VENDOR’S OR THE MANUFACTURER’S STANDARD WARRANTY OR THE WARRANTY PROVIDED UNDER LAW. ALL WARRANTIES WILL SURVIVE ACCEPTANCE OF AND PAYMENT FOR ANY AND ALL GOODS ORDERED PURSUANT HERETO. BOTH PARTIES DISCLAIM ALL IMPLIED WARRANTIES AND ANY WARRANTIES NOT EXPRESSLY NOTED ABOVE.
Confidential Information
If Vendor has agreed to a nondisclosure agreement or other confidentiality terms with Oura (“NDA”), then the NDA will apply to this PO and any discussions and communications exchanged between Vendor and Oura pertaining to the PO and any Goods, Services, or Deliverables contained therein, including the fact that Oura is making the purchases hereunder. In the event of a conflict between the terms of the NDA and these PO Terms, these PO Terms will take precedence as applied to the Goods, Services, or Deliverables supplied hereunder, and any use or disclosure purpose noted on the NDA will be deemed, for purpose of these PO Terms, to refer to the parties’ respective obligations under the PO and these PO Terms. If no NDA is currently in effect between Vendor and Oura, then Vendor agrees that: (1) all information furnished or disclosed to Oura by Vendor in connection with this PO is furnished or disclosed as a part of the consideration for this PO; (2) that such information provided by Oura (a) must and will be treated as confidential and proprietary by Vendor using reasonable safeguards and in no event less than a reasonable degree of care, (b) may not be used by Vendor except for Oura’s benefit, as necessary to perform Vendor’s obligations owed to Oura hereunder, and may not be disclosed to any third parties without Oura’s consent, (c) will not be copied or modified except as strictly necessary for Vendor’s authorized use for Oura’s benefit as noted herein; and (3) Vendor’s obligations of confidentiality will survive this PO and Vendor’s performance of obligations owed hereunder indefinitely. If Vendor is requested or required by law, subpoena, or other governmental or legally-binding order or agreement to disclose any of Oura’s information provided hereunder, then Vendor will immediately notify Oura, will use diligent efforts to limit disclosure and seek confidential treatment of Oura’s information (or alternatively will permit Oura to do the same), and will only disclose the portion of Oura’s information that is strictly necessary to comply with the applicable disclosure requirement. Vendor will securely return, or permanently and securely destroy, all such of Oura’s information upon completion by Vendor of its obligations under this order, or upon request by Oura, and at Oura’s request will provide written confirmation of compliance with return or destruction procedures signed by an authorized representative of Vendor.
Advertisement
Vendor will not in any manner advertise or publish the fact that it has furnished or contracted to furnish the Goods, Services or Deliverables to Oura and will not disclose the existence of or any information about this order to any party without the prior written consent of Oura.
Subcontracting
Unless otherwise permitted or approved by Oura or provided for in a separate writing between Vendor and Oura pertaining to the Goods, Services, or Deliverables to be supplied pursuant to this PO, Vendor agrees to obtain Oura’s prior written consent before subcontracting this PO in whole or any substantial portion hereof, provided, however, that this limitation will not apply to the purchase of standard commercial supplies, tools, or raw materials, or to the use of individual non-employee personnel. Regardless of the foregoing, Vendor will remain liable for all acts or omissions by any employee, non-employee, or subcontractor used by Vendor in the performance of Vendor’s obligations hereunder. Vendor will ensure that all subcontractors and personnel performing work under this PO are bound by written agreements containing intellectual property assignment, Oura IP protection, and confidentiality obligations at least as protective of Oura as those set forth in these PO Terms.
Tangible Property
Title to and the right to immediate possession of any tangible property, including patterns, tools, molds, dies, jigs, fixtures, raw materials, components, and any other equipment or material furnished by Oura to Vendor will remain in Oura ("Oura Tangible Property"). No articles of Oura Tangible Property or made therefrom will be furnished by Vendor to any other party without Oura's prior written consent. Vendor will keep accurate records of such Oura Tangible Property, which records will be made available to Oura upon request, and will store, protect, preserve, repair, and maintain the Oura Tangible Property in accordance with sound industrial practice, all at Vendor's expense. Unless otherwise agreed to in writing by Oura, Vendor will insure Oura's interest in such Oura Tangible Property while in Vendor's possession against loss or damage. Copies or certificates of such insurance will be furnished to Oura on request. In the event that the Oura Tangible Property becomes lost or damaged while in Vendor's possession to any extent from any cause, including faulty workmanship and/or negligent acts by Vendor, its agents, or its employees, Vendor agrees to indemnify Oura or replace such property, at Vendor's expense, in accordance with Oura's request. At Oura's request, or upon completion of the Services or other obligations for which the Oura Tangible Property was required, Vendor will request return or disposition instructions for all such Oura Tangible Property, or the remainder thereof, whether in its original form or in semi-processed form. Vendor agrees to make such Oura Tangible Property available to Oura at Oura's request, in the manner requested by Oura, including preparation, packing, and shipping as directed, at Oura's expense.
Oura Intellectual Property
All designs, specifications, drawings, CAD files, 3D models, schematics, engineering data, formulas, processes, technical information, and other intellectual property furnished or disclosed by Oura to Vendor in connection with this PO (collectively, "Oura IP") are and will remain the property of Oura. Vendor will not acquire any right, title, or interest in any Oura IP by reason of this PO or Vendor's performance hereunder. Vendor will use Oura IP solely to fulfill its obligations under this PO and for no other purpose. Vendor will not (1) use any Oura IP to manufacture, produce, or supply goods or services for any third party, (2) reverse engineer, decompile, or disassemble any Oura IP, (3) create derivative works of any Oura IP except as authorized by Oura in writing and solely for the purpose of fulfilling this PO, or (4) file or cause to be filed any patent, trademark, copyright, or other intellectual property application or registration based on or incorporating any Oura IP.
Developed IP
All inventions, designs, improvements, tooling designs, mold designs, manufacturing processes, know-how, and other intellectual property created or developed by Vendor or its personnel (whether alone or jointly with Oura) in performing this PO, or that are derived from or incorporate any Oura IP (collectively, "Developed IP"), will be the property of Oura. Vendor assigns to Oura all right, title, and interest in the Developed IP. Vendor will promptly disclose all Developed IP to Oura in writing and will execute all documents and take all actions reasonably requested by Oura to evidence or protect Oura's ownership of the Developed IP. If Vendor fails to do so within ten (10) business days of Oura's request, Vendor appoints Oura as Vendor's attorney-in-fact to execute such documents on Vendor's behalf. For clarity, Developed IP does not include Vendor's pre-existing intellectual property that was independently developed by Vendor prior to and without reference to any Oura IP ("Vendor Pre- Existing IP"), provided that if any Vendor Pre-Existing IP is incorporated into Goods or Deliverables provided to Oura, Vendor grants Oura a non-exclusive, worldwide, perpetual, royalty-free license (with the right to sublicense) to use, reproduce, modify, and create derivative works of such Vendor Pre-Existing IP as part of or in connection with such Goods or Deliverables.
Sublicensing
All licenses granted by Vendor to Oura under this PO or these PO Terms include the right for Oura to sublicense such rights to its affiliates, subsidiaries, contractors, and manufacturing partners solely in connection with Oura's business operations and products.
Termination
Either party as non-breaching party may terminate this PO if the other party materially breaches these PO Terms (or the NDA, if applicable) and does not cure said breach within thirty (30) days of written notice by the non-breaching party (or three days, with respect to the NDA or breach of Section 7 below). Upon receipt of notice of termination, Vendor will, unless the notice directs otherwise, immediately discontinue the performance of all Services, preparation of Deliverables, or provision of Goods, including the further provision and the placing of all orders for materials and supplies needed to manufacture Goods for Oura, and will promptly cancel all existing orders and terminate all subcontracts insofar as such orders or subcontracts are chargeable to this PO. Upon the termination of work under this order, full and complete settlement of all claims of Vendor with respect to the terminated work will be made as follows: (1) as compensation to Vendor for such termination, unless such termination results from the breach by Vendor, Oura will pay to Vendor the percentage of the total PO price corresponding to the proportion of the number or quantity of Services and Deliverables completed or accepted Goods supplied on the date of termination; (2) for subscription-based purchases, payment will apply through (a) the remaining months of the then-current annual subscription term, for yearly subscriptions (and any automatic or further renewals will be deemed canceled and terminated by Oura), (b) the end of the then- current month, for monthly subscriptions, or (c) the end of the then-current annual period, for multi-year subscriptions, with all future annual periods being refundable to Oura, if previously paid prior to termination, or canceled and not payable, if not yet paid. Nothing contained in this paragraph will be construed to limit or affect any remedies which Oura may have as a result of breach by Vendor.
Limitation of Liability
Except for a breach of the NDA or Section 7, or either party’s violation of the other party’s (or its licensors’) intellectual property rights, or Vendor’s indemnification obligations to Oura, neither party will be liable to the other for (1) any indirect, consequential, exemplary, or punitive damages of any kind, (2) any direct damages that, cumulatively and as to all claims, exceed the value paid or payable under this PO.
Force Majeure
Neither party hereto will be liable for defaults or delays due to acts of God or the public enemy, acts or demands of any government or governmental agency, strikes, fires, floods, epidemics, pandemics, accidents, or other unforeseeable causes beyond its control and not due to its fault or negligence. Each party will notify the other in writing of the cause of any such delay within five (5) days after the beginning thereof.
Compliance with Law
Vendor agrees to fully observe and comply with all applicable international, federal, State, and local laws, rules, regulations, and orders pertaining to its obligations and undertakings hereunder. Upon request, and, where associated with Oura’s own compliance obligations pertaining to Oura’s operations or products, Vendor will furnish Oura certificates of compliance with such laws, rules, regulations, and orders.
Notice of Labor or Supply Chain Disputes
Whenever Vendor has knowledge that any actual or potential labor or supply chain dispute is delaying or threatens to delay the timely performance of this PO, Vendor will immediately give written notice thereof, including all relevant information with respect thereto, to Oura.
Indemnification
Vendor agrees to defend, indemnify, and hold harmless Oura, its directors, managers, employees, affiliates, subsidiaries, agents, and representatives, and their successors or assigns, against all third party claims against the foregoing to the extent resulting from (a) Vendor’s misappropriation, violation or infringement of a third party’s intellectual property or other rights in any Goods, Services, or Deliverables provided to Oura hereunder and used by Oura as permitted under these PO Terms (excluding claims to the extent resulting from modification, unauthorized use, or combinations of the foregoing items by Oura or parties acting on behalf of Oura where the claims would not have arisen but for such modification, combination, or unauthorized use), (b) death, bodily injury, or injury to real or tangible property caused by Vendor’s acts or omissions, (c) product liability claims for the Goods resulting from Vendor’s or its manufacturer’s or supplier’s failure to comply with legally-required safety and other industrial or manufacturing standards, procedures, certifications, or other similar obligations. Vendor will take control of the defense of any such indemnifiable claims at its costs and expense using reputable counsel, promptly upon the tendering of the claim to Vendor, and will pay all resulting damages, fines, penalties, amounts agreed by Vendor in settlement (subject to Oura’s approval if the settlement is contingent on Oura’s admission of fault, guilt, publication of the terms of settlement, or if Oura is required to perform obligations beyond payments for which Vendor provides a full indemnity hereunder), and any litigation costs and expenses. Oura will cooperate reasonably with Vendor’s defense obligations at Vendor’s request. Oura may, at its cost and expense, defend such claim. Vendor will maintain and require its subcontractors to maintain: (1) general commercial liability, public liability and property damage insurance including contractual liability (both general and vehicle) in amounts sufficient to cover obligations set forth above, and (2) workers compensation and employer’s liability insurance covering all employees engaged in the performance of this order to claims arising under any applicable Workers’ Compensation and Occupation Disease Acts, and (3) applicable cyber, professional, and errors and omissions coverage, if Vendor is providing technology products or services. Vendor will furnish certificates evidencing such insurance at Oura’s request.
General
Neither this order nor any rights or obligations herein may be assigned by Vendor nor may Vendor delegate the performance of any of its duties hereunder (except as noted in the subcontracting section above) without, in either case, Oura’s prior written consent. All questions concerning the validity and operation of this order and the performance of the obligations imposed on the parties under this order will be governed by the laws of the State of California, U.S.A. Except where otherwise expressly noted, the remedies provided herein will be cumulative and in addition to any other remedies provided by law or in equity. A waiver of a breach of any provision hereof will not constitute a waiver of any other breach hereof. All correspondence pertaining to this order, or to any of the terms and conditions covered by this order, will be in the English language. The relationship between the parties is non-exclusive, and Oura reserves the right at any time in its sole discretion to obtain from third parties or internally develop similar, identical, or competitive services, goods, or technology (provided such development is not in breach of Oura’s obligations hereunder). These PO Terms do not create any joint venture, agency, or employment relationship between the parties. Vendor and Oura are independent contractors with respect to one another under the terms of these PO Terms. Neither party will have the authority to legally bind the other party to any contract, proposal, or commitment or incur any debt, or create any liability on behalf of the other. Notwithstanding any term to the contrary, neither party will be prevented from (a) working with, hiring, or soliciting any non-employee third party even if also contracted with the other party, or (b) hire any person who voluntarily responds to a general solicitation of employment. All notices will be sent by hand delivery, overnight courier service, or certified mail (postage prepaid) to the addresses set forth in the PO or the registered principal place of business of a party, and the effective date of any notice will be the date of proof of delivery. Notices to Oura will include a copy addressed: Oura, ATTN: Legal Department, 415 Kearny Street, San Francisco, CA 94108, California, United States.
Mikäli englanninkielisen version ja muihin kieliin tehtyjen käännösten välillä on ristiriita, etusijalla on englanninkielinen, ellei sovellettava paikallinen laki toisin määrää.