Purchase Order Terms and Conditions

1. TERMS OF ORDER. These terms and conditions (which include the terms and conditions on the face of the applicable Purchaser’s Purchase Order (“Order”)) set forth the entire understanding between the Vendor and Purchaser and supersede (i) all other prior agreements, written or oral, between the Vendor and Purchaser with respect to the subject matter of this Order (except where the Order explicitly incorporates or references a written agreement between Vendor and Purchaser, in which case the terms and conditions of that written agreement apply and supersede these standard Purchase Order Terms and Conditions) and (ii) any additional or conflicting terms contained on Vendor’s acknowledgment, confirmation, invoice or similar documents. Any additional or conflicting terms will have no effect.

2. REPRESENTATIONS AND WARRANTIES. Vendor represents, warrants and covenants that:
(i) the goods (and the manufacture, packaging, storage, handling, transportation and delivery thereof) supplied:
a. will comply with all applicable federal, state and local laws, rules, regulations, codes and ordinances,
b. will conform to the specifications, drawings, samples or other descriptions contained in the Order or provided or approved by Purchaser,
c. will be merchantable, of satisfactory quality, of good material and workmanship and free from defects,
d. if ordered for a specific purpose, will be fit for their intended purpose, and
e. in the absence of contrary specifications, will be of the highest grade and quality;
(ii) the services provided will be performed (i) in a professional and workmanlike manner and (ii) in compliance with all applicable laws, rules, regulations, codes and ordinances, and all of Purchaser’s safety and other requirements communicated to Vendor;
(iii) Vendor will:
a. at its own cost, initiate, maintain and supervise all environmental and safety precautions and programs required to provide the services and comply with all of Purchaser’s environmental, health and safety rules;
b. at its own cost, obtain and maintain all necessary permits, license or other approvals and give all notices legally required to provide the services;
c. at its own cost, provide all labor, materials, machinery, equipment, tools, transportation and other facilities and services needed for the proper execution and completion of the Order, unless otherwise provided on the face of the Order;
d. be solely responsible for all methods and procedures of delivering and coordinating all portions of the services, unless otherwise provided on the face of the Order;
e. be solely responsible for the handling, transportation and disposal of all materials, substances and chemicals that Vendor or any subcontractor brings onto Purchaser’s premises and any waste generated or resulting from the use thereof;
f. not dispose or permit the release of any materials, substance or chemical (or any waste generated or resulting from the use thereof) on Purchaser’s premises;
g. inspect any Purchaser-supplied equipment, tools, scaffolding and/or other materials (“Purchaser Materials”);
h. not use any Purchaser Materials unless they are suitable for their intended use, and return all Purchaser Materials to Purchaser in a like condition in which they were borrowed;
i. accept full responsibility for safety and management over persons and property within that portion of Purchasers’ premises where the services are being performed (“Service Location”) and to the extent possible, physically separate the Service Location from the remainder of the Purchaser’s premises;
j. warn its subcontractors and its and their respective employees, agents, representatives, guests and visitors of any risks, hazards, or dangers, whether latent or patent, (“Dangers”) associated with the Service Location and the rest of the Purchaser’s premises;
k. inspect the Service Location at least once daily for any Dangers and eliminate any Dangers or, to the extent any Dangers cannot be eliminated, advise the Purchaser and warn its employees and visitors of these Dangers;
l. keep the Service Location and other parts of Purchaser’s premises free from accumulations of materials and refuse and, upon completion of the services, promptly remove same and all of Vendor’s machinery, tools, and equipment and any unused materials, substances or chemicals and return Purchaser’s premises to their original state;
m. remove Vendor employees, representatives and other personnel providing services from Purchaser’s premises upon request of Purchaser.
(iv) no liens or claims will be filed, maintained or enforced by Vendor or its suppliers or subcontractors for any service performed or materials provided;
(v) where applicable, Vendor shall comply with the requirements of the Fair Labor Standards Act of 1938, as amended, in performing the services hereunder. To the extent applicable to Vendor’s work for, or on behalf of, Purchaser, Vendor also agrees to comply fully with all applicable federal, state, and local laws and regulations concerning nondiscrimination and affirmative action, including those enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) and/or the U.S. Equal Employment Opportunity Commission (EEOC). As applicable, Vendor agrees to comply with Executive Order 11246, as amended. Purchaser is an equal opportunity employer, and to the extent Purchaser is a federal contractor: (a) the Order is subject to the rules and regulations imposed upon contractors and subcontractors pursuant to 41 CFR Chapters 60 and 61; (b) unless this Order is exempt, there is incorporated herein by reference 41 CFR 60-1.4, 60-250.5 and 61250.10. 29 C.F.R. Part 471, Appendix A to Subpart A is also incorporated herein by reference; (c) Purchaser and Vendor shall abide by the requirements of 41 CFR 60-741.5(a), whichregulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractor and subcontractor to employ and advance in employment qualified individuals with disabilities; and (d) Purchaser and Vendor shall abide by the requirement of 41 CFR 60-300.5(a), which regulation prohibits discrimination against qualified protected veterans, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans.

3. ACCEPTANCE. Purchaser will have a reasonable period of time after delivery or performance within which to inspect and accept the goods or services. The receipt of goods or services, the inspection or non-inspection of or payment for the goods or services, will not constitute acceptance of the goods or services and will not impair Purchaser’s right to (i) reject nonconforming goods or services, (ii) recover damages and/or (iii) exercise any other rights or remedies to which Purchaser may be entitled. Further, acceptance of goods or services will not waive any rights or remedies accruing to Purchaser as a result of any breach of the Order. Rejected goods may be returned to Vendor or otherwise disposed of at Vendor’s cost and expense.

4. BACKGROUND CHECKS. Purchaser requires criminal background checks in the U.S. (and elsewhere as communicated by Purchaser and permitted by local law) for personnel who will be on-site at a Purchaser location and have unescorted access privileges. Vendor will conduct such criminal background checks in accordance with Purchaser’s then-current standards and will use Purchaser’s then-current provider of choice for obtaining such checks. Vendor will be responsible for the costs incurred in obtaining the background check. Vendor will receive a report, including a pass or fail outcome based on Purchaser’s targeted screen for contractors with unescorted access, from Purchaser’s provider of choice. If contractor or temporary worker believes that he/she should not have failed the check, this can be addressed with the Purchaser contact. Purchaser will not have access to the content of any such report, except that it may receive, upon request, the following information: name of individual, Purchaser identifying code, date of check, and whether a background check was completed. It is Vendor’s sole responsibility to ensure that it does not supply to Purchaser any individual who fails a criminal background check under this Section. If any individual leaves Vendor’s employment for more than six (6) months, then such individual will have to undergo another background check in accordance with this Section before such individual is once again allowed on-site at a Purchaser location. Vendor will allow Purchaser, upon request, to audit (subject to all disclosure authorization requirements and to the extent permitted by any applicable federal, state, or local law) Vendor’s records and any reports reasonably related to the criminal background check requirements described in this Section. Vendor agrees that it will comply with all applicable laws in conducting the criminal background checks.

5. EMPLOYMENT ELIGIBILITY VERIFICATION. To the extent Purchaser is a federal contractor and may be awarded new or amended federal contracts or subcontracts that specifically include Federal Acquisition Regulation (FAR) 52.222-54 – Employment Eligibility Verification (referred to as the “FAR E-Verify clause”). If Purchaser is awarded a new or amended federal contract or subcontract containing the FAR E-Verify clause, the Department of Homeland Security (“DHS”) requires Purchaser to “flow down” the FAR E-Verify requirement to each covered subcontract. If Purchaser’s subcontract requires the FAR E-Verify clause, Purchaser will provide a contract addendum inserting the clause. Vendor must sign and return the addendum to Purchaser within seven (7) business days after receiving the addendum. Refusal to accept the contract addendum will result in the termination of the covered subcontract.

6. PRICE AND TAXES. Price and delivery terms are as stated on the face of the Order. Unless otherwise provided on the face of the Order, the price includes (i) all costs to comply with the terms and conditions of the Order, (ii) any and all taxes, including sales, use, excise, value added and other taxes, and (iii) fees, duties, or other governmental impositions on the sale of the goods or services covered by the Order. If Purchaser is required to pay any taxes or other impositions, Vendor will promptly reimburse Purchaser.

7. INVOICING AND PAYMENT. Vendor will invoice Purchaser for the amounts due under the Order. Except as otherwise stated on the face of the Order, Purchaser will pay Vendor all undisputed amounts within forty-five (45) calendar days after receipt of the applicable invoice or receipt of the goods (or performance of the services), whichever is later, or within such lesser period of time as may be required by Law.

8. PROPRIETARY INFORMATION AND MATERIALS. All drawings, specifications and other copyrightable documents and any molds, dies, tools, equipment, recipes, trade secrets, patents, trademarks or the like furnished by or on behalf of Purchaser are for use solely with respect to the Order. Vendor (i) will not have any rights to, property or interest in the same except to the extent necessary to execute the Order, (ii) will be responsible for maintaining the same in proper working order subject only to normal wear and tear and (iii) upon completion (or earlier cancellation or termination) of the Order, will promptly destroy or return these items, as requested by Purchaser.

9. OWNERSHIP OF INVENTIONS. With respect to new or modified goods/services, the parties agree that all rights, titles, and interest in any and all inventions (including discoveries, ideas, or improvements, whether patentable or not), which are conceived or made during or after the term of the Order and are (i) based upon or arising from Purchaser’s information, or (ii) developed specifically for Purchaser hereunder, will belong to Purchaser. In the event that Vendor produces works of authorship specifically for Purchaser under the Order (“Works”), the Works will be deemed “works made for hire” and Purchaser will receive all rights, title, and interest thereto. However, if any Works are not determined to be “works made for hire”, Vendor agrees to assign, and hereby assigns to Purchaser and its successors the entire right, title, and interest, in and to the Works. Nothing in the Order will affect the pre-existing intellectual property rights of the parties.

10. CONFIDENTIALITY. Vendor agrees to keep confidential the terms and conditions of the Order and all proprietary information disclosed by or on behalf of Purchaser or otherwise learned or obtained by Vendor in connection with the Order or the performance of the Order. Vendor will not use any of this information other than in connection with the performance of the Order and will not disclose any of this information except to the extent required by law and then only after prior notice to Purchaser.

11. AUDIT. Subject to reasonable confidentiality obligations, Purchaser will have the right to audit and inspect the records and facilities of Vendor and Vendor’s agents, representatives and subcontractors used in performance of the Order or relating to the goods or services to the extent reasonably necessary to determine Vendor’s compliance with the Order. Vendor will provide Purchaser or its third party designee conducting the audit or inspection with reasonable assistance, including without limitation access to buildings, appropriate personnel and work space. Purchaser’s audit/inspection, or failure to conduct any audit or inspection, will not release Vendor from any of Vendor’s obligations.

12. RISK OF LOSS. Except as otherwise set forth in the delivery terms on the face of the Order, Vendor will retain the risk of loss and/or damage to the goods until the goods are physically delivered to Purchaser.

13. INDEMNIFICATION. Vendor agrees to indemnify and hold harmless Purchaser, its affiliates and their directors, officers, employees, agents, and representatives from and against any and all liability, loss, damage, fine, penalty, cost or expense (including without limitation indirect, consequential, or special losses, damages, costs, or expenses such as reasonable attorneys’ fees) to the extent arising out of or resulting from (1) any non-conforming good or services; (2) any alleged or actual, direct or contributory infringement or misappropriation of any patent, copyright, trade secret or other proprietary right arising from the purchase, use or sale of the goods or services provided by Vendor; (3) any leak or spill of any materials, substances or chemicals while being transported or delivered to Purchaser or while on Purchaser’s premises; (4) any breach by Vendor of any term or condition contained in the Order; (5) the use of any Purchaser Materials or any person in the employ of Purchaser to perform any of the services under the Order and/or (6) the negligent acts or omissions, or willful misconduct of Vendor, Vendor’s subcontractor’s, employees, agents, representatives and any person performing services under the Order. Without limiting the foregoing, Purchaser may require Vendor to re-deliver against non-conforming goods or re-execute non-conforming services at Vendor’s cost and expense.

14. REMEDIES AND WAIVER.
(i) Time is of the essence for all deliveries under the Order. If Supplier fails to comply with a delivery date, that failure will be a material breach of Order and Purchase has, in addition to its other rights and remedies under the Order, the right to cancel that shipment and any other future shipments under the Order without any liability to Supplier. Purchaser may (but is not obligated to) designate any reasonable, alternative delivery point(s) or place(s), in order to expedite Supplier’s performance of its delivery obligations.
(ii) Purchaser may withhold any payment otherwise due under the Order (1) if the goods or services are defective or otherwise not in compliance with the requirements of the Order and Supplier does not promptly remedy the defect or failure to comply, (2) Supplier’s subcontractors, if any, have filed, asserted or threatened to assert a lien over the goods or product of the services, (3) as a setoff against any amounts claims made by Purchaser against Vendor under the Order or related to any other agreement between Purchaser and Supplier, and (4) any amount owed by Supplier to Purchaser or any of Purchaser’s affiliates.
(iii) All rights and remedies stated in the Order are in addition to rights, remedies and defenses available under applicable law. Except as may be expressly stated in the Order, nothing in the Order, and no failure or delay by Purchaser in exercising any right, remedy or defense, will be deemed to waive or limit any of Purchaser’s rights, remedies of defenses in law or in equity. Any waiver of a right, remedy, or defense must be in writing and signed by Purchaser.

15. CANCELLATION/TERMINATION. Except to the extent prohibited by applicable law, Purchaser (i) may cancel an Order for any reason or no reason prior to shipment of the applicable goods or performance of services by providing written notice to Vendor and (ii) may immediately terminate the Order, even after shipment, by providing written notice to Vendor if Vendor breaches any term or condition of the Order or, without the requirement to provide written notice, if Vendor becomes insolvent or subject to any proceeding under any bankruptcy or any insolvency law.

16. FORCE MAJEURE. Each party will be excused from a failure to perform or a delay in performance to the extent caused by events beyond its reasonable control. The party claiming excuse from performance must take reasonable efforts to remove the cause of its inability to perform or its delay in performance. The party claiming excuse from performance must give prompt written notice to the other party of the event, specifying its nature and anticipated duration. If Vendor’s performance is excused or delayed for more than twenty (20) calendar days, Purchaser may terminate the Order by giving Vendor written notice, which termination will become effective upon receipt of notice. If Purchaser terminates the Order, Purchaser’s sole liability will be to pay any balance due for conforming goods and services delivered by Vendor before receipt of Purchaser’s termination notice.

17. ORIGIN CONTROL CLAUSE. Vendor agrees that the goods and services will not in any way directly or indirectly originate from or be provided by any country , person or entity which would cause Purchaser to be in violation of or be penalized by U.S. or other applicable economic sanctions laws.

18. INSURANCE. If supplying services, Supplier will maintain insurance that will protect it from acts under workers’ compensation acts and other employee benefit acts, from claims for damages due to bodily injury, including death, and from claims for damages to property which may arise out of or result from the services performed under the Order, whether such services are performed by Supplier, Purchaser, or any of Supplier’s subcontractors or anyone directly or indirectly employed by any of the them. This insurance will include, without limitation, workers’ compensation, employer’s liability, commercial general liability (including personal injury and broad form property damage) and automobile liability. Such insurance will be written for not less than US$1 million per occurrence, or as required by law, whichever is greater, will include contractual liability insurance as applicable to Supplier’s obligation under section 12 above, and will include a waiver of subrogation claims against Purchaser. Certificates of this insurance, which will name purchaser as an “additional insured” on the general and automotive liability policies, will be given to Purchaser at Purchaser’s request. Supplier may not cancel, or materially and negatively alter, this insurance coverage without at least 30 days prior notice to Purchaser.

19. GOVERNING LAW. The laws of the jurisdiction of the address of the Purchaser on the face of the Order, disregarding any conflict of law rules in that jurisdiction, will govern the Order. Any dispute arising from the Order will be resolved in the courts in the jurisdiction of the Purchaser.

20. EXCLUSION OF CONVENTIONS. The following international conventions will NOT apply to the Order: (i) the Uniform Law on the Sale of Goods and the Uniform Law on the Formation of Contracts for the International Sale of Goods, (ii) the United Nations Convention on Contracts for the International Sale of Goods of 1980 and (iii) the United Nations Convention on the Limitations Period in the International Sale of Goods, concluded in New York on 14 June, 1974, and the Protocol Amending the Convention on the Limitations Period in the International Sale of Goods, concluded in Vienna on 11 April, 1980.

21. ASSIGNMENT/SUBCONTRACTING. Vendor may not assign or subcontract its rights and obligations under the Order without the prior written consent of Purchaser.

22. SEVERABILITY. If any provision of the Order is held by any court to be invalid, illegal or unenforceable, either in whole or in part, that holding will not affect the validity, legality or enforceability of the remaining provisions, or any part thereof, of the Order, all of which will remain in full force and effect.