Purchase Order Standard T&C (US)
STANDARD TERMS AND CONDITIONS
The materials or deliverables specified in this purchase order are ordered subject to the following terms and conditions, and are in addition to instructions and specifications on the purchase order, and shall be hereinafter together be referred to as “Purchase Order”.
- The terms and conditions of this Purchase Order apply exclusively. None of the terms and conditions of the Supplier shall be applicable to the business contemplated hereunder, irrespective of it being attached to any documents to be provided to Company. Such exercise shall have no meaning and binding effect unless the same is accepted by the Company in writing.
- Acceptance or payment of Goods and services received from the Supplier does not constitute waiver of liability of the Supplier for defective Goods and services.
- Time is of the essence in Supplier’s performance of its obligations as specified under the Purchase Order. Company’s acceptance of Supplier’s notice will not constitute Company’s waiver of any of Supplier’s obligations.
- If Supplier delivers the Goods specified in the Purchase Order to be delivered on or before the delivery date (“Goods”) after the date or dates specified in the Purchase Order by which the Supplier is required to deliver the Goods (“Delivery Date”), Company may reject such Goods.
- Company will hold any Goods rejected under this Purchase Order at Supplier’s risk and expense, including storage charges, while awaiting Supplier’s returns shipping instructions. Supplier will bear all return shipping charges, including without limitation, insurance charges Company incurs on Supplier’s behalf
Supplier will preserve, pack, package and handle the Goods so as to protect the Goods from loss or damage and in accordance with best commercial practices in the absence of any specifications Company may provide. Without limiting the foregoing, Supplier shall observe the requirements of any local laws and regulations relating to hazardous Goods, including, without limitation, with respect to its accompanying information, packing, labeling, reporting, carriage and disposal.
- Supplier will include with each delivery of Goods a packing list identifying the Purchase Order number, the Company part number for each of the Goods (if applicable), a description and the quantity of each of the Goods, and the date of shipment.
PRICE AND PAYMENT
- Unless otherwise specified in the Purchase Order, the price for the Goods includes all taxes and other charges such as shipping and delivery charges, duties, customs, tariffs, imposts and government-imposed surcharges. Supplier will, at Company’s request, break-out from the price all such taxes and other charges, in its invoices. Supplier shall use its best efforts to assist Company in all legal efforts to minimize the taxes resulting from the performance of this Purchase Order.
- Company will pay Supplier the price in accordance with the payment terms set forth in the Purchase Order, else within a period of 30 days following the later of: (i) the Delivery Date; (ii) the date of Company’s acceptance of all of the Goods; or (iii) Company’s receipt of an undisputed invoice.
- Company may, at any time, set-off any amounts Supplier owes to the Company against any amounts Company owes to Supplier or any of its affiliated companies. Under no circumstances shall Company pay or advance funds to Supplier, nor shall Supplier accept such funds, other than in accordance with a valid and applicable Purchase Order for Goods to be delivered.
INSPECTION AND ACCEPTANCE
- Acceptance is affected subject to the reservation of an examination for faultlessness, in particular also including accuracy and completeness, insofar and as soon as this is pertinent in the ordinary course of business. Company will give notice of any defects found without undue delay after their discovery. To this extent the Supplier waives the objection to delayed notification of defects.
- At Company’s option, Company may (i) return the nonconforming Goods to Supplier for a refund or credit; (ii) require Supplier to replace the non-conforming Goods; or (iii) repair the non-conforming Goods so that it meets the requirements.
- As an alternative to 4.2 (i) through 4.2 (iii), Company may accept the non-conforming Goods conditioned on Supplier providing a refund or credit in an amount Company reasonably determines to represent the diminished value of the non-conforming Goods. Company’s payment to Supplier for Goods prior to Company’s rejection of such Goods as nonconforming will not be deemed as acceptance by Company.
- In principle Company shall have the right to select the type of supplementary performance. The Supplier shall be bound to accept such supplementary performance, except only in cases of disproportionate expenses in complying with the same, the parties shall mutually discuss about the best possible alternative.
- In the event that the Supplier does not commence rectifying the defect immediately after request to remedy it has been made by Company, in urgent cases, especially to ward off acute danger or to prevent greater damage, Company shall be entitled to undertake such rectification itself or to have it undertaken by a third party at the expense of the Supplier.
- If the Supplier in performance of its obligation replaces any defective Goods, the warranty for such Goods shall run afresh from the date of replacement. Further, if Supplier performs its obligation to effect supplementary performance by supplying a substitute Good, the statute of limitations of the Goods delivered in substitution shall start to run anew after delivery thereof unless, when effecting the supplementary performance, the Supplier explicitly and appropriately made the reservation that the substitute delivery was effected purely as good will, to avoid disputes or in the interests of continuation of the delivery relationship.
- Should Company incur expenses as a result of the defective delivery of the Goods, in particular transport, carriage, labor costs, assembly and disassembly costs, costs of material or costs of incoming Goods control exceeding the normal scope of the control, such costs shall be borne by the Supplier.
- Subject to the above conditions, at the sole option of Company, if the defective Goods are not rectified within the proposed deadline, the same shall be removed by the Supplier at its expense within a period of 7 days from the date of receipt of notice by Company. If Supplier fails to do so, then Company shall arrange to dispatch such Goods to the Supplier at the sole risk and cost of the Supplier. Such costs shall include but not be limited to expenses towards packing, forwarding, freight etc. If there is any damage to the Goods during the period of transit, Company shall not under any circumstances be responsible and liable for any consequences arising therefrom.
- As used in this Section 4, “Change” means a change Company directs or causes within the general scope of this Purchase Order.
- Company, by written order (“Change Order”), may make Changes in accordance with this Section.
- Supplier shall, as promptly as practicable within 2 days of receiving a Change Order, submit a request for equitable adjustment specifying the adjustment in the price or time for performance resulting from the Change.
- The parties shall negotiate an amendment to this Purchase Order to incorporate a Change Order providing for an equitable adjustment to the price, time for performance, or both.
- Supplier will proceed with the Changed Goods as directed, notwithstanding that the parties have not negotiated the amendment to this Purchase Order to incorporate the equitable adjustment.
REPRESENTATIONS AND WARRANTIES
Supplier Represents and Warrants that:
- It has the full power and authority to enter into the Purchase Order and to perform its obligations under the Purchase Order;
- Company’s use of any Goods provided hereunder, do not and will not infringe upon any third party’s intellectual property rights, right of publicity or privacy, or any other proprietary rights, whether contractual, statutory or common law;
- Supplier will not disclose to Company, bring onto Company's premises, or induce Company to use any confidential or proprietary information that belongs to anyone other than Company or Supplier which is not covered by a non-disclosure agreement between Company and Supplier;
- Software supplied by Supplier does not contain any harmful code;
- Supplier’s Goods conforms to Company’s specifications, Supplier’s quotation or proposal, and Supplier’s brochures or catalogs, and if none of the foregoing is applicable, then such Goods is suitable for the intended use;
- In performing its obligations under this Purchase Order it will apply the Code of Ethics found at: https://devsite1.247-inc.com/code-of-conduct-for-vendors;
- In performing its obligations under this Purchase Order it will apply and conform to the information security policies found at https://devsite1.247-inc.com/service-providers-information-security-requirements-us
- In performing its obligations under this Purchase Order it will apply and confirm to confidentiality obligations found at https://devsite1.247-inc.com/vendor-confidentiality-obligations
TERM AND TERMINATION
- The Purchase Order will remain in effect until the delivery of Goods is completed and accepted in writing by the Company.
- Company may terminate this Purchase Order, at any time, for no reason or for any reason, upon 15 days written notice to Supplier. Upon receipt of notice of such termination, Supplier will inform Company of the extent to which it has completed performance as of the date of the effective date of the notice, and Supplier will collect and deliver to Company whatever Goods then exists. Company will pay Supplier for all Goods and/ or services that are delivered/ performed and accepted through the effective date of the termination, provided that Company will not be obligated to pay any more than the payment that would have become due had Supplier completed and Company had accepted the Goods. Company will have no further payment obligation in connection with any termination.
- Either party may terminate the Purchase Order, immediately by delivering written notice to the other party upon the occurrence of any of the following events: (i) a receiver is appointed for either party or its property; (ii) either makes a general assignment for the benefit of its creditors; (iii) either party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor's relief law, if such proceedings are not dismissed within 60 days; or (iv) either party is liquidating, dissolving, or ceasing to do business in the ordinary course.
- Company may immediately terminate the Purchase Order upon written notice to Supplier if there is a change in ownership representing 20 percent or more of the equity ownership of Supplier.
- Either party may terminate this Purchase Order, immediately by delivering written notice to the other party for any material breach not cured within 30 days of receipt of notice of the breach. Company shall have no further payment obligation to Supplier if Company terminates this Purchase Order under this Section 10.5.
Supplier irrevocably and unconditionally agrees, to the fullest extent permitted by law, to defend, indemnify, and hold harmless the Company, its officers, directors, employees and agents, from and against any and all claims, liabilities, losses, fines, penalties and expenses (including reasonable attorneys’ fees) directly, indirectly, wholly or partially arising from or related to this Purchase Order including but not limited to:
- non-compliance with the Company’s policies;
- negligence or willful misconduct of the Supplier, its employees, contractors, suppliers or agents;
- defects in the workmanship, materials or design of the Goods supplied, services or work performed by the Supplier;
- failure to comply with any applicable central, state or local laws; or
- breach of this Purchase Order.
- NOTWITHSTANDING ANYTHING ELSE IN THE PURCHASE ORDER OR OTHERWISE, COMPANY WILL NOT BE LIABLE TO SUPPLIER WITH RESPECT TO THE SUBJECT MATTER OF THE PURCHASE ORDER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS IN THE AMOUNT COMPANY PAID TO SUPPLIER IN THE SIX MONTHS PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH LIABILITY.
- IN NO EVENT WILL COMPANY BE LIABLE TO SUPPLIER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS ARISING OUT OF, OR IN CONNECTION WITH, THE PURCHASE ORDER, WHETHER OR NOT COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
Supplier will secure and maintain insurance providing coverage for liabilities to third parties for bodily injury (personal injury) and damage to property in amounts sufficient to protect Company in the event of such injury or damage, and will be in compliance with any and all laws, regulations or orders addressing the liabilities of an employer to its employees for injuries and disease suffered in connection with employment. Supplier further will maintain such additional types and limits of insurance as is customary for a company of similar size and similar operations to Supplier in the jurisdiction or jurisdictions in which Supplier’s operations take place.
ASSIGNMENT AND SUBCONTRACTING
Supplier shall not sub-contract or otherwise assign its obligations under this Purchase Order to other agency except with the written consent of the Company which consent the Company may be arbitrarily withheld without having to assign any reasons for the same.
Supplier hereby undertakes that it shall not directly or indirectly, solicit, offer employment or contract for services of any kind whatsoever to any employee of the Company or its customers or induce, tempt or entice any employee of the Company or its customers to join the Supplier or any other company or organization at any time during the term of the Purchase Order or within six (6) months of its expiry/ termination howsoever arising.
Supplier is solely responsible for all services performed under the Purchase Order, the content of any product created under this Purchase Order, and the manner in which any such product may be disseminated. This Purchase Order shall not create any agency relationship, partnership, or joint venture between the parties, and Supplier shall make no such representation to anyone.
This Purchase Order shall be governed by and construed in accordance with the laws of the State of California, but without giving any effect to the choice of law principles thereunder. The Parties agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Purchase Order.
Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against any other Party in any way arising from or relating to this Purchase Order and all contemplated transactions, in any forum other than the US District Court for Santa Clara, and any appellate court from thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the US District Court for the District of Santa Clara or, if such court does not have subject matter jurisdiction, the courts of the State of California sitting in San Francisco. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law
- All advertisements for personnel in any of the newspapers, dailies, posters, etc. or in any manner or media whatsoever placed on behalf of the Company by the Supplier require prior and written confirmation from the Company. This includes all use of the Company’s or its customer’s logo, brand name and other intellectual property.
- If any provision of this Purchase Order conflicts with the law under which this Purchase Order is to be construed or if any such provision is held invalid by a competent authority, such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the Parties in accordance with applicable law. The remainder of this Purchase Order shall remain in full force and effect.
- A delay or omission by either Party to exercise any right or power under this Purchase Order shall not be construed to be a waiver thereof. A waiver by either of the Parties of (i) any right, (ii) any of the covenants to be performed by the other, or (iii) any breach of this Purchase Order shall not be construed to be a waiver of any right, obligation or succeeding breach thereof. Such a waiver shall be valid only if granted in writing and signed by an authorized representative of the Party against which such waiver or discharge is sought to be enforced.
- Suppliers and their employees, agents or representatives shall not offer or give to an officer, employee, agent or representative of the Company any services, gifts, entertainment, payments, loans or other special favors or engage in other conduct of the type which is or appears to be offered for the purpose of influencing the award of a contract, to obtain favorable treatment under a contract or which would otherwise create a conflict of interest or the appearance of one. The Supplier shall comply with all applicable anti-bribery and anti-corruption laws including but not limited to the Foreign Corrupt Practices Act, 1977 and shall conduct its engagement with the Company in good faith and shall comply with ethical standards and business policies of the Company.
- Except as otherwise expressly provided herein, all remedies provided for in this Purchase Order shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law or in equity.
- Any provision of this Purchase Order that contemplates performance or observance subsequent to termination or expiration of this Purchase Order shall survive termination or expiration of this Purchase Order and continue in full force and effect, including in particular confidentiality, indemnity and liability.
- All modifications and amendments to this Purchase Order must be made in writing.
- This Purchase Order supersedes any and all agreements and any prior communication by or on behalf of the Company with regard to the services described herein.
- This Purchase Order may be executed in counterparts, each of which when executed and delivered shall be an original, but all of which shall constitute one and the same instrument.