1. APPLICABILITY. All purchase orders issued by Zwift, Inc. or its designated contract manufacturers on behalf of Zwift, Inc. (referenced jointly herein as “Zwift”), for the purchase of products from suppliers and vendors (referred to herein as “Supplier”) are subject to these terms and conditions of purchase (“Terms and Conditions”). Zwift specifically rejects and Supplier disclaims all printed or handwritten provisions in Supplier’s acceptance and confirmation documents, including any associated forms. Unless otherwise noted in the applicable purchase order (the “Order”), these Terms and Conditions constitute the entire agreement between Zwift and Supplier with respect to any Zwift purchase order and the products covered by this Order (“Goods”). These Terms and Conditions supersede any and all prior or contemporaneous agreements or representations, whether written or oral, except for such commercial agreements as may have been negotiated, entered into in writing, and signed by an authorized representative of each party. Any amendment to these Terms and Conditions must be in writing and signed by an authorized representative of Zwift. To the extent that this Order might be treated as an acceptance of Supplier’s prior offer, such acceptance is expressly made on condition of assent by Supplier to the terms hereof, and the shipment of the Goods by Supplier shall constitute such assent.
2. REVOCATION AND ACCEPTANCE OF ORDER. This order may be revoked at any time before Zwift’s receipt of written acceptance by Supplier. Supplier shall accept or reject the Order within five (5) days of Supplier’s receipt. If Supplier does not accept or reject the Order within this five-day period, Supplier shall be deemed to accept the Order.
3. DELIVERY. Delivery of the Goods shall be made according to the schedule, via the carrier and to the place specified, and as indicated by the INCOTERMS agreed upon, unless changed by written instructions from Zwift prior to shipment. As soon as the Supplier is aware, Supplier will notify Zwift of the delay (or potential delay), the revised committed delivery date(s), and the reasons for the delay (or potential delay). After receiving such notice, Zwift may, at its sole discretion, choose any one or more of the following options: (a) cancel the Order, or any delayed portion of it; or (b) accept the proposed delivery date(s), subject to Zwift’s desired modifications to the Order; or (c) request expedited shipment to meet agreed delivery dates at Supplier’s expense. Unless Supplier has obtained prior written approval from Zwift, Zwift may refuse incomplete deliveries. Title and risk of loss or damage shall pass to Zwift upon receipt of Goods at the designated delivery point.
4. SHIPPING INSTRUCTIONS. Products shall be packed in manufacturer’s original packaging and in suitable containers to permit safe transportation and handling. Each delivered container must be correctly labeled and marked to identify contents and country of origin without opening, and all boxes and packages must contain packing lists listing contents. Zwift’s purchase order number, as well as Zwift’s part number(s), must appear on all shipping containers, packing sheets, delivery tickets and bills of lading.
5. TRANSSHIPMENT. Supplier certifies that the country of origin listed on transaction documents, including the commercial invoice, is correct. Supplier acknowledges that it is illegal to transship merchandise and claim a false country of origin in order to avoid import restrictions or trade remedies. Illegal transshipment is strictly against Zwift policy. Zwift has the right to refuse any shipment that it discovers has been transshipped.
6. COMMERCIAL INVOICE, PRICE AND PAYMENT. The prices payable for the Goods shall be quoted in U.S. dollars. Any commercial invoices shall include the following information: clear and accurate description of the merchandise, quantity, value, country of origin (i.e., where the item was made), name and location of Supplier, name and address of buyer, name of company and address goods where goods will be shipped. Supplier certifies that the information on this invoice is correct and acknowledges that this invoice may be used to make Customs entry. Except as otherwise specified in the Order: (a) Zwift shall pay all invoices sixty (60) days from the end of the month in which the products are received by Zwift (current plus 60); and (b) the price of the Goods includes charges for VAT and other applicable taxes, duties, import charges, transportation, handling and insurance during transit.
7. IMPORTATION. As applicable, Supplier shall comply with Zwift’s instructions regarding providing documentation necessary for Customs importation to Zwift’s Customs broker. Supplier certifies all information provided for Customs importation is accurate.
8. INCOMING INSPECTION. Zwift shall conduct inspection and acceptance testing within a reasonable time period. Zwift reserves the right to reject all products that do not comply with applicable specifications. Such rejected products shall be held or returned to Supplier at Supplier’s risk and expense.
9. ORDER VARIATIONS AND RESCHEDULING. Zwift may, by purchase order amendment issued to Supplier, change (a) the method of shipment or packing, (b) the drawings, designs or specifications, (c) the place of delivery of (d) the shipment date. Within three (3) days from receipt of a purchase order amendment, Supplier shall notify Zwift in writing of modifications to the delivery schedule and any increase or decrease in the cost of performance caused by a purchase order amendment and provide supporting documents. Zwift shall make an equitable adjustment in the Order to reflect valid cost variances resulting from the requested Zwift changes. Zwift may postpone confirmed delivery dates provides that notice of such delay is sent to Supplier more than fifteen (15) days before the confirmed delivery date.
10. NOTIFICATIONS BY SUPPLIER. Supplier shall advise Zwift in writing (a) of any foreseeable part shortages, and (b) six (6) months in advance of obsolescence or end-of- life situations that could prevent Supplier from supplying Goods to Zwift.
11. CHANGES AND DEVIATIONS. Supplier initiated changes impacting Goods may not be implemented until written approval from Zwift has been received by Supplier. This includes changes and/or deviations to Supplier production process documentation that could potentially affect the form, fit or function of Goods.
12. WARRANTY. Supplier warrants to Zwift and its customers that the Goods delivered hereunder shall be new, unused and free of defects in material and workmanship for a period of twelve (12) months from the date of acceptance by Zwift.
13. COMPLIANCE WITH APPLICABLE LAWS. Zwift is placing this order in reliance on Supplier’s compliance with all United States federal, state and local laws as well as all other relevant local, national and international laws, codes, rules, directives, regulations and treaties that are applicable in the countries where business is conducted. Suppliers certify that they do not source any materials or products from any United States sanctioned entities or Specially Designated Nationals or any entities prohibited or sanctioned in the country where the ordered products will be shipped.
14. FORCED AND CHILD LABOR AND SOCIAL RESPONSIBILITY COMPLIANCE. Suppliers shall comply with Zwift’s Social Responsibility Policy and Code of Conduct as may be amended by Zwift from time to time. Supplies shall ensure that no forced, indentured, or child labor in the production of goods or materials supplied to Zwift. Suppliers shall confirm that their supply chains are free of forced, indentured, or child labor and maintain documentation of such.
15. INDEMNIFICATION. Supplier shall indemnify, defend and hold harmless Zwift and its customers from any and all actual, alleged or threatened suits, claims, actions or proceedings (each of the foregoing, a “Claim”) relating to (a) any of the Goods infringing any patent, copyright, trademark or other intellectual property right, (b) persons injury or property damage caused by the Goods, (c) defects in the Goods which amount to a breach of Supplier’s warranties in Section 10 or (d) any negligent or reckless act or willful misconduct of Supplier. Supplier agrees to defend Zwift, at Supplier’s expense, against any such Claim and to pay all settlement payments, costs and legal expenses, including reasonable attorneys’ fees, and any damages arising from such Claim.
16. TERMINATION. Without limiting any of Zwift’s rights according to these Terms and Conditions or applicable law: (a) Zwift may terminate this Order in whole or in part at any time by written notice to Supplier/ Supplier will thereupon immediately (i) stop work on the cancelled Goods, (ii) notify its subcontractors to do likewise, (iii) cancel orders for components for the cancelled Goods, (iv) return unneeded components for cancelled Goods or divert such components to other jobs. Supplier shall not be entitled to compensation for cancelled non-custom Goods. Except for termination due to default or delay of Supplier, Supplier shall be entitled to compensation for cancelled custom Goods and custom components thereof on hand at the termination date as follows. Zwift will purchase finished Goods at the Order price, work-in-process at a reasonable pro-rata percentage of the finished Goods Order price based on the percentage of completion, and custom components for the cancelled Goods, which Supplier property ordered and was not able to cancel, sell, or broker using diligent efforts within ninety (90) days after cancellation, at Supplier’s cost for such custom components. The total paid by Zwift for such cancellation shall not exceed the price on the Order for the cancelled Goods. If Zwift breaches its obligations under this Order, including without limitation wrongful rejection of Goods, Supplier’s exclusive remedy shall be to receive damages for the Goods in question as if such Goods were cancelled, computed in the manner set forth in this section. (b) Zwift may terminate its Order if Supplier fails to deliver Goods within five (5) days of the confirmed delivery date. (c) In the event of repeated deliveries of defective Goods to Zwift, Zwift is expressly permitted to immediately cancel all purchase orders to Supplier without penalty, charge or other fee.
17. REMEDIES. NEITHER PARTY SHALL BE LIABLE FOR INCIDENTAL, INDIRECT, SPECIAL AND CONSEQUENTIAL DAMAGES (HOWEVER ARISING), INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFIT, LOSS OF USE, LOSS OF REVENUES OR DAMAGES TO BUSINESS OR REPUTATION ARISING FROM THE PERFORMANCE OR NON-PERFORMANCE OF ANY ASPECT OF THE PURCHASE AND SALE OF PRODUCTS AND SERVICES.
18. SPARE PARTS. Supplier shall have available for supply and shall supply to Zwift spare parts for the Goods for seven (7) years from the date of delivery of the Goods.
19. INSURANCE. Supplier shall at its expense take out insurance in accordance with the generally accepted practice in Supplier’s industry, including without limitation general liability insurance covering the work performed pursuant to a purchase order. Zwift does not provide theft, fire, or any type of insurance on Supplier's property or equipment. Supplier acknowledges that it is Supplier’s sole responsibility to insure Supplier’s property and equipment.
20. PRESS RELEASES AND PUBLICITY. Supplier will not issue press releases or other publicity regarding the parties’ relationship or any purchase order without the prior written approval of Zwift.
21. GOVERNING LAW AND JURISDICTION. The validity, construction, and interpretation of these Terms and Conditions and the Order to which they apply shall be solely and exclusively governed by and construed in accordance with the laws of the State of California, excluding any otherwise application of the United Nations Convention in Contracts for the International Sale of Goods. The courts in Los Angeles County, California shall have sole and exclusive jurisdiction over the parties and subject matter of the Order. For implementation of the Order and all its consequences, each party waives such of its rights and privileges under any other law or legal system, such as the law of the place of performance, as is necessary to give effect to the Order and these Terms and Conditions.
22. WAIVER. No claim or right arising out of the breach of this Order by Supplier can be discharged by a waiver of the claim or right by Zwift unless the waiver is supported by consideration and is in writing signed by Zwift.
23. ASSIGNMENT. Supplier shall not assign its rights or obligations under this Order, including subcontracting any portion of the production of the Goods, without the advance written permission of Zwift. Zwift may assign its rights under this Order to a subsidiary upon written notice to Supplier.
24. SEVERABILITY. If any provision of these Terms and Conditions is determined to be unenforceable or invalid, in whole, or in part, such invalidity or unenforceability shall attach only to such provision or part thereof and the remaining part thereof and all other provisions shall continue in full force and effect.
25. CONFIDENTIALITY. Specifications and other information provided by Zwift to Supplier concerning its requirements for Goods, the terms of this Order, and the fact that Supplier has furnished or has contracted to furnish Zwift with the Goods are all to be regarded as “Confidential Information.” Supplier shall not, without Zwift’s advance written consent, advertise or disclose any item of Confidential Information. Notwithstanding the foregoing, nothing in these Terms and Conditions is intended to limit any prior confidentiality obligations either party may have to the other under any non-disclosure agreement.