Purchase Order Terms and Conditions for the United States
- Definitions. "Deliverables" means the goods, materials, products, software, technical data, intellectual property, drawings, personal property, personnel, services or items identified and/or listed in this purchase order for Buyer's internal use and resale. "Personal data" means any information that can identify a specific living individual.
- Acceptance of Purchase Order. This purchase order constitutes Buyer's offer to Seller and shall become a binding contract upon the terms and conditions stated in this purchase order upon acceptance by Seller by any expression of acceptance, or commencement of performance, whichever occurs first. Any terms and conditions proposed by Seller in acknowledging or accepting Buyer's offer which are different from or in addition to the terms set forth in this purchase order shall not be binding upon Buyer and shall be void and of no effect, except to the extent expressly accepted in writing by Buyer's authorized procurement representative(s).
- Data. Seller acknowledges that it has in its possession all applicable specifications, drawings and documents (including, without limitation, statements of work) necessary to perform its obligations under this purchase order at the price and schedule stated on this purchase order or its attachments. All such documentation shall be deemed to be a part of this purchase order.
- Packing and Shipping. Deliveries shall be made as specified on this purchase order without charge for packaging or storage unless otherwise agreed in writing by Buyer. Deliverables shall be suitably packed to secure the lowest transportation costs and in accordance with the requirements of the carriers of the releases or orders subject to this purchase order. Seller shall use the carrier (s) selected by Buyer if Buyer so requests. Buyer's order numbers must be plainly marked on all packages, bills of lading and shipping orders. Buyer's count or weight shall be conclusive. Seller shall not ship in advance of schedule or make partial shipment unless otherwise agreed in writing by Buyer. Risk of loss shall be retained by Seller until delivery of the Deliverables at the location specified on this purchase order. Delivery according to schedule is a major condition of this purchase order.
- Taxes and Duties. The prices stated in this purchase order include all applicable taxes and duties, except state and local sales and use taxes, which by statute may be passed on to Buyer. Such sales and use taxes shall be separately itemized in Seller's invoice. This purchase order shall include all related customs duty and import drawback rights, if any, including rights developed by substitution and rights, which may be acquired from Seller's suppliers, which Seller shall transfer to Buyer. Seller agrees to inform Buyer of the existence of all such rights, and to supply such documents as may be required to obtain such drawbacks, unless waived in writing by Buyer. Seller agrees to certify to Buyer the country of origin for Deliverables delivered under this purchase order.
- Payment and Prices. Unless different payment terms are expressly stated on this purchase order, payment terms shall be forty- five (45) days from Buyer's receipt of Seller's correctly presented invoice. A "correctly presented" invoice will contain this purchase order number sent to the billing address on this purchase order. Seller represents that prices quoted to or paid by Buyer shall not exceed current prices charged to any other customer of Seller for deliverables which are the same or substantially similar to, and in the same or substantially similar quantities as the Deliverables. Seller shall refund or Buyer may set off against subsequent invoices any amounts paid by Buyer in excess of such price(s).
- Set-off. Buyer shall be entitled at all times to set off any amount owing at any time from Seller to Buyer (or any of Buyer's affiliates and subsidiaries) against any amount payable at any time by Buyer (or any of its affiliates and subsidiaries) to Seller.
- Warranty. Seller warrants that all Deliverables will conform to applicable specifications, drawings, descriptions, and samples, and will be of new manufacture, good workmanship and materials, and free from design defect, claim, encumbrance or lien, and be suitable for the purpose intended by Buyer. Seller warrants that it has full title, right, power and authority to enter into this purchase order and perform its obligations under the purchase order. Seller warrants that Deliverables that are services shall be performed in a professional and workmanlike manner. Seller warrants that electronic data processing hardware, software and firmware Deliverables are Year 2000 ready. If applicable, Supplier warrants that the Software and other associated products used in combination with the Software shall meet the relevant international standards (ISO) and regulations for currency conversions between participating denominations of the Euro applicable in the European Union (EU), and in particular shall be capable of correctly presenting the results of its monetary functions in Euro, allowing the introduction and processing of Euro values, correctly implementing and respecting the conversion and rounding requirements specified by EU law during the dual denomination period, and observing Euro currency conventions relating to symbols and codes, including production of the Euro symbol [€]. If the Deliverables delivered under this purchase order do not meet the warranties specified in this purchase order or other applicable warranties, Buyer may, at its option, return at Seller's expense, the defective or nonconforming Deliverables for credit, refund or set-off, or require Seller to correct or replace, at no cost to Buyer, any defective or nonconforming Deliverables, including, without limitation, re-perform any Deliverables that are services. Return shipping to Buyer of corrected or replacement Deliverables shall be at Seller's expense. Deliverables required to be corrected or replaced (including, without limitation, the re-performance of any Deliverables that are services) shall be subject to this Section 8 and Section 9 (Inspection) in the same manner and to the same extent as Deliverables originally delivered under this purchase order. Seller's warranties shall run to Buyer, its affiliates, subsidiaries, customers or users of the Deliverables and shall not be deemed to be exclusive of any other remedy at law or in equity available to Buyer, its affiliates, subsidiaries, customers or users of the Deliverables. Buyer's inspection, approval, acceptance, use of, or payment for all or any part of the Deliverables shall in no way affect its warranty rights. Seller shall at its expense indemnify, defend and hold harmless, Buyer, its directors, officers, employees, affiliates, subsidiaries, agents, customers and end users, from any and all loss, damages or liability (including, without limitation, reasonable legal fees and costs) arising out of or resulting in any way from any defect in the Deliverables, or from any act or omission of Seller, its agents, employees or permitted subcontractors in connection with the Deliverables. This indemnification shall be in addition to Seller's warranty obligations. Seller warrants that it has full right, title and interest in, and full title, power and authority to use any Personal Data it uses, provides or supplies in connection with the performance of this purchase order and shall be fully and solely liable for any third party claims arising out of or relating to any violation of law in connection with the Personal Data subject to this purchase order, breach of this purchase order in connection with the Personal Data subject to this purchase order, intentional and/or negligent handling of the Personal Data subject to this purchase order by Seller. For purposes of this Section 8 (Warranty), Personal Data shall be deemed Deliverables.
- Inspection. The Deliverables may be inspected and/or tested by Buyer at any time, place and stage of production or distribution, and if at Seller's premises, Seller, without additional charge, shall provide all reasonable facilities and assistance required for safe and convenient inspection and testing. The foregoing shall not relieve Seller of its obligation to permit Buyer full and adequate inspection and testing away from Seller's premises. Buyer may base rejection of any or all Deliverables on inspection by sampling or any other reason permitted by Article 2 of the Uniform Commercial Code. Payment shall not constitute Buyer's acceptance of the Deliverables nor impair Buyer's right to inspect and/or test the Deliverables or exercise any of its remedies. Upon notice of rejection of defective Deliverables, risk of loss of such Deliverables shall be upon Seller until redelivery, if any, to Buyer. Rejected Deliverables may be returned to Seller or held by Buyer, both at Seller's risk and expense, subject to Seller's disposal instructions.
- Default. Buyer may, by written notice to Seller, cancel this purchase order or any release or order subject to this purchase order for default, (a) if Seller fails to deliver the Deliverables strictly within the time specified in this purchase order, or if no time is specified, within a reasonable time; (b) if the Deliverables delivered do not conform to this purchase order or if Seller fails to perform any of the other provisions of this purchase order, or so fails to make progress as to endanger performance of this purchase order in accordance with its terms; or (c) if Seller's financial condition shall at any time become unsatisfactory to Buyer. Upon such cancellation, Buyer shall not be liable to Seller for any amount. Seller will deliver to Buyer any of the Deliverables for which Buyer shall make written request prior to or upon cancellation, for which Buyer will pay Seller the fair value of any such Deliverables so requested and delivered. Buyer may pursue any remedies available at law or in equity and Seller shall be liable to Buyer for any and all damages suffered by Buyer by reason of Seller's default. Seller shall cooperate with any transition of the delivery of the Deliverables as reasonably requested by Buyer.
- Change Orders. Buyer shall have the right by written notice to change the terms of this purchase order, the drawings, specifications or other descriptions, the time, method or place of delivery or the method of shipment or packaging or to suspend delivery of the Deliverables. Upon receipt of such notice, Seller shall proceed promptly to make such changes. If any such change causes a change in the cost of the Deliverables or in the time required for performance, Seller shall provide prompt notice to Buyer of any such change and an equitable adjustment shall be negotiated promptly and this purchase order shall be modified in writing accordingly.
- Title. Title to and the right of immediate possession of all articles, tooling, equipment, software, or materials furnished to Seller or paid for by Buyer directly or indirectly for use by Seller in connection with this purchase order shall be and remain in Buyer. Seller shall be (a) responsible on a replacement cost basis for all loss or damage to such articles, tooling, equipment, software or materials while in its possession and insure its risk in this respect with adequate all risk property insurance; (b) clearly mark the same as belonging to Buyer, keep it segregated in Seller's facility and treat it confidentially as provided in this purchase order; (c) keep the same in good operating condition; and (d) use the same exclusively in connection with the delivery of the Deliverables for this purchase order and not for any production of larger quantities than specified or in advance of normal production schedules, except with Buyer's prior written consent. Articles, tooling, equipment, software, or materials furnished to Seller shall not include government- furnished items of this sort. Upon completion of this purchase order, all articles, tooling, equipment, software, or materials furnished to Seller or paid for by Buyer shall be disposed of by Seller at Seller's expense as Buyer directs in writing. With the exception of software not specifically developed for Buyer under this purchase order, (i) all Deliverables shall be the sole and exclusive property of the Buyer, and where applicable, shall be considered "works made for hire" under the U.S. Copyright Act (Title 17, United States Code), and all intellectual property, proprietary and industrial rights associated with Deliverables shall be owned exclusively by Buyer; (ii) by this purchase order, Seller assigns to Buyer for no additional consideration all such rights to the Deliverables, including the right to any extensions and renewals of such rights; and (iii) if requested by Buyer, Seller shall, without additional consideration, sign a separate written assignment of such rights to Buyer or any other document necessary for Buyer to establish, maintain or enforce such rights in the Deliverables.
- Intellectual Property and Proprietary Rights. Seller shall at its expense indemnify, defend and hold harmless, Buyer, its directors, officers, employees, affiliates, subsidiaries, agents, customers and end users, from any and all loss, damages or liability (including, without limitation, reasonable legal fees and costs) for or on account of, or resulting from, any claim of infringement of any existing or future copyrights, patents, or trademarks, misappropriation of any trade secrets, or violation of any other intellectual, proprietary or industrial rights, with respect to any of the Deliverables. The fact that Buyer furnishes specifications to Seller with respect to any of the Deliverables shall neither relieve the Seller from its obligations under this purchase order nor limit Seller's liability in connection with the Deliverables, nor constitute an undertaking by Buyer to hold Seller harmless against any such claim which arises out of compliance with the specifications.
- Confidential Information. Seller shall not disclose to any third party or use any confidential information of Buyer's concerning this purchase order or other material intended for use in connection with this purchase order without Buyer's prior written consent. Any knowledge or information which Seller may disclose to Buyer in connection with the purchase of any of the Deliverables shall not, unless Buyer otherwise specifically agrees in writing, be deemed to be confidential information and shall be acquired free from any restriction as part of the consideration for this purchase order. For purposes of this Section 14 (Confidential Information), any Personal Data supplied by Buyer shall be deemed confidential information of Buyer and Seller shall treat it in accordance with the provisions of this Section and the Unisys Privacy Notice. Seller shall perform duties of the “Processor” according to the Data Privacy Addendum and adhere to the provisions of the Data Security Addendum, which is incorporated in these Purchase Order Terms and Conditions by reference, for Personal Data that Seller Processes on behalf of Buyer.
- Termination. At any time Buyer, at its option, may terminate this order for convenience in whole or in part by written notice. A stop work order or any other form of written notice requiring Seller to immediately cease performance under this purchase order shall obligate Seller to immediately stop work and take any actions necessary to mitigate the impact of such notice. If Buyer does not give Seller written notice to resume work within twenty (20) days after its initial stop work order, this purchase order shall then be deemed terminated for Buyer's convenience as of the twenty-first (21st) day after the initial stop work order. Any claim of Seller shall not exceed reasonable demonstrated costs it has incurred in performance of this purchase order prior to notice of termination and shall in no event exceed the total amount of this purchase order. Buyer shall remit to Seller any payment due to Seller for documentable and reasonable costs incurred before receipt of Buyer's notice of termination in performance of this purchase order.
- Compliance with Law. Each party shall comply with all applicable laws, including without limitation, government export control, privacy and data protection laws, and anti-bribery laws
- Delays. Whenever an actual or potential labor dispute or other event beyond the reasonable control and without the fault or negligence of the Seller is delaying or threatens to delay the timely delivery of the Deliverables, Seller shall immediately give written notice of delay, including all relevant information regarding the delay, to Buyer. In addition, Seller shall take all reasonable steps to avoid or remove the cause of such delay and mitigate the harm of such delay to Buyer and will resume performance (if suspended) as soon as the cause of delay is removed. In the event the Seller's performance is delayed or is expected to be delayed by more than five (5) business days, the Buyer upon written notice to Seller may terminate this purchase order for its convenience in accordance with Section 15 of this purchase order.
- Assignment and Subcontract. Neither this purchase order nor any duty or right under this purchase order shall be delegated, assigned or subcontracted without the prior written consent of Buyer. Any assignment not made in accordance with the terms and conditions of this Section is void and of no effect.
- Advertising. Seller shall not, without the prior written consent of Buyer, in any manner advertise or publish the fact that Seller has contracted to furnish Buyer the Deliverables under this purchase order.
- Personal Injury and Property Damage Indemnification. Seller agrees at its expense to indemnify, defend, and hold harmless Buyer, its directors, officers, employees, affiliates, subsidiaries, agents, customers and end users from any and all loss, claims and liability, including, without limitation, reasonable legal fees and costs, for death, injury or disability of any person or damage to or destruction of property (including, without limitation, the loss of use of any property or the presence of hazardous substances at any property) caused by or resulting from the acts or omissions of Seller, its agents, suppliers or employees in connection with the performance of this purchase order. During the performance of this purchase order, Seller shall maintain in full force and effect, at its sole cost and expense, the minimum insurance coverage stated below, written on an "occurrence basis" and not "claims-made" basis (unless otherwise stated), covering activities performed under this purchase order, including without limitation, coverage of all automobile exposure, all property liability exposure and all contractual liability exposure. All insurance shall be placed with reputable insurance companies acceptable to Buyer with a current rating in A.M. Bests Insurance Rating guide of at least A-X and licensed to do business in the country(ies), state(s) or province(s) where the purchase order is being performed. Seller shall maintain insurance with the following minimum policy limits:
- Worker's Compensation - as required by code, ordinance or government regulation of the state, nation, territory or province where activities are performed and with Employer's Liability of not less than $500,000 per occurrence;
- Business Automobile Liability covering all owned, non-owned, and hired vehicles used in connection with the performance of this purchase order with limits not less than $2.0 million per occurrence for bodily injury and property damage;
- Commercial General Liability written on a broad form basis, including but not limited to coverage for bodily injury, property damage, contractual liability, products and completed operations, subcontractors, personal injury and advertising injury with a combined single limit of not less than $2.0 million per occurrence for bodily injury and property damage; and
- If applicable, Professional Liability covering activities performed under this purchase order with limits of not less than $5.0 million per occurrence (written on a "claims-made" basis).
- Hazardous Chemicals and Hazardous Materials. Prior to shipment or transfer of any hazardous chemical(s), as defined by regulations promulgated pursuant to the Occupational Health and Safety Act ("OSHA"), Seller shall provide Buyer with a complete, up-to-date Material Safety Data Sheet and shall properly mark such hazardous chemical(s) with a label satisfying the requirements of OSHA's Hazard Communication Standard (29 CFR Part 1910.1200 et seq.). Any shipment or transfer by Seller of any hazardous material(s) (as defined by regulations promulgated by the U.S. Department of Transportation ("DOT") and Appendix A of Federal Standard number 313A), shall be conducted consistent with the requirements of DOT regulations promulgated at 40 CFR Part 171 et seq.
- Relationship of Parties. The Seller and Buyer are independent contractors. Nothing in this purchase order shall be deemed to create a partnership, joint venture, franchise, employment, or agency relationship between the parties. Neither party shall have the power or authority to bind or obligate the other party.
- Waiver. Any failure or delay by either party in exercising any right or remedy will not constitute a waiver.
- Entire Agreement. Unless another agreement expressly references and incorporates this purchase order into such agreement (or otherwise makes this purchase order supplementary to such agreement) and such agreement provides for an order of precedence, this purchase order, together with any data referenced in Section 3 of this purchase order, constitutes the entire agreement and exclusive statement of the terms between the parties with respect to the purchase and sale of the Deliverables under this purchase order and terminates and supersedes all previous negotiations, communications, representations, or agreements between the parties. No alteration, modification or amendment of any of the provisions in this purchase order shall be binding unless in writing and signed by Buyer's authorized procurement representative(s). If any provision of this purchase order is held to be illegal, invalid or unenforceable by a court of competent jurisdiction, all other provisions shall remain in full force and effect.
- Governing Law. This purchase order shall be governed by the laws of the Commonwealth of Pennsylvania, without giving effect to conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods and Articles 3 through 9 inclusive of the Uniform Commercial Code shall not apply to this purchase order. The parties expressly agree to "opt-out" of and not be governed by the Uniform Computer Information Transactions Act (UCITA) or any similar law.
- Survival. Any provision in this purchase order which, by its nature, would reasonably be expected to be performed after the termination of this purchase order shall survive and be enforceable after such termination.
- Limitation of Liability. In no event shall Buyer be liable for any incidental, indirect, special, consequential or punitive damages, even if Buyer knew or should have known of the possibility of such damages.
- Supplementary Provisions to Government Contracts. For Deliverables involving or subject to a government contract, the applicable provisions are contained in the supplement and made a part of this purchase order.
- Ethical Conduct. Seller acknowledges that it has reviewed the Unisys Business Partner Code of Business Conduct and agrees to comply with such Code in connection with its performance under this purchase order. Unisys Business Partner Code of Business Conduct, which may change from time to time, is located at Business Partner Code of Business Conduct.
- US Govt. (OFCCP) Equal Opportunity Notification. Seller shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a) and 29 CFR Part 471, Appendix A to Subpart A with respect to affirmative action program and posting requirements, and that these requirements are incorporated herein. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status, or disability.
- Social and Environmental Responsibility. Supplier warrants that in all countries in which Supplier and, to Supplier’s information and belief, Supplier’s authorized subcontractors do business, its and their operations comply with all Applicable Laws governing labor and employment, employee health and safety, protection of the environment, and ethical practices. Supplier will comply with Unisys’ Business Partner Code of Business Conduct.
Human Rights. Supplier hereby undertakes, warrants and represents that:
a. it shall comply with all applicable anti-slavery and human trafficking laws, statutes and regulations from time to time in force in any relevant jurisdiction such as the UN International Bill of Human Rights as well as Unisys’ anti-slavery and human trafficking statement, as published in Unisys’ Code of Ethics and Unisys Business Partner Code of Business Conduct.
b. neither Supplier nor any of its officers, employees, agents or subcontractors (and such subcontractors shall procure the following from its subcontractors (if any)) has: (i) committed an offense under any Anti-Modern Slavery Laws or (ii) been notified that it is subject to an investigation relating to an alleged Modern Slavery Offense or prosecution under Anti-Modern Slavery Laws; or (iii) awareness of any circumstances within its business or supply chain which are reasonably likely to give rise to an investigation relating to an alleged Modern Slavery Offense or prosecution under Anti-Modern Slavery Laws.
c. Supplier shall take all reasonable steps to ensure that slavery, servitude, human trafficking, forced or compulsory labor, and/or child labor do not take place in its supply chains or in any part of its business (including making all necessary enquiries with its suppliers and, to the extent reasonable, other parties in the supply chain).
d. Supplier shall notify Unisys immediately in writing if it becomes aware or has reason to believe that it, or any of its officers, employees, agents or subcontractors (or such subcontractors own subcontractors) have breached or potentially breached any of Supplier’s obligations under this clause. Such notice will set out full details of the circumstances concerning the breach or potential breach of Supplier’s obligations.e. In the case of breach of any of the provisions of this clause, Unisys may suspend or terminate the Agreement (and/or any Order under it) at any time without notice, liability, or indemnity. This provision will survive termination of the Agreement (and/or Order) for any reason.
Relevant Requirements. Supplier shall, and shall procure that persons associated with it or persons who are performing Services, or providing Products in connection with the Agreement, shall: (a) comply with all Applicable Laws relating to anti-bribery and anti-corruption (“Relevant Requirements”). Supplier shall provide such supporting evidence of compliance as Unisys may reasonably request.
Compliance. Supplier warrants and represents that: (a) its responses to Unisys' anti-bribery and anti-corruption due diligence questionnaire (if applicable) are complete and accurate; (b) neither Supplier nor any of its officers, employees: (i) has been convicted of any offense involving bribery or corruption, fraud or dishonesty; (ii) has been or is the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body regarding any offense or alleged offense under the Relevant Requirements; or (iii) has been or is listed by any government agency as being debarred, suspended, proposed for suspension or debarment, or otherwise ineligible for participation in government procurement programs or other government agreements; (c) none of the officers or employees of Supplier or any other person who is performing Services or providing Products in connection with the Agreement is a foreign public official; and (d) no foreign public official owns a direct or indirect interest in Supplier or any other person for whom Supplier is responsible under this section and no foreign public official has any legal or beneficial interest in any payments made by Unisys under the Agreement.
Notification. Supplier shall promptly notify Unisys if, at any time during the term of the Agreement, its circumstances, knowledge or awareness changes such that it would not be able to repeat the warranties set out in this section at the relevant time.
Default. Breach of this clause shall be deemed a material default and Unisys shall be entitled to terminate the Agreement without any liability to Supplier in accordance with such clause and, in particular, Supplier shall not be entitled to claim compensation or any further remuneration, regardless of any activities or agreements with additional third parties entered into before termination.
No Obligation. Regardless of any other provisions in the Agreement, Unisys shall not be obliged to do, or omit to do, any act which would, in its reasonable opinion, put it in breach of any of the Relevant Requirements.
Remedy for Breach. Supplier shall indemnify Unisys against any losses, liabilities, damages, costs (including, but not limited to, legal fees) and expenses incurred by, or awarded against, Unisys as a result of any breach of this clause by Supplier.
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