Purchase Order Terms & Conditions
The terms and conditions on this website (the “Site”) govern the purchase order (including any attachments provided in connection therewith, the “PO”) that has been transmitted to you (“Supplier”) by ASIC North, Inc., a Vermont corporation (“AN”). The PO and these terms and conditions are collectively referred to as this “Agreement.”
Except as set forth in Section 1(a) below, by accepting the PO and/or starting performance (i.e., shipping any goods or furnishing any services), Supplier acknowledges that Supplier has read, understands, and agrees to be bound by the terms and conditions set forth in this Agreement. Any objections shall be communicated with the appropriate AN representative within 3 (three) business days of the PO date.
These terms and conditions are specific to the PO and may hereafter be revised by AN at any time. Any revised terms and conditions will be immediately effective for POs issued thereafter; therefore, Supplier should review these terms and conditions on the Site for any future POs issued by AN.
1. Entire Agreement; Amendments.
(a) It is the mutual desire and intent of AN and Supplier to provide certainty as to their respective rights and remedies against each other by defining the extent of their mutual undertakings. Accordingly, except as stated in the sentence that immediately follows this sentence, the PO and these terms and conditions (1) contain the entire understanding of AN and Supplier with respect to the subject matter of the PO and incorporate all representations, warranties, covenants, commitments and understandings on which AN and Supplier have relied, and neither party makes any other representations, warranties, covenants, commitments or understandings; and (2) supersede all previous representations, warranties, covenants, commitments and understandings between AN and Supplier, written or oral, including any terms in an estimate, an offer or other similar document, with respect to the subject matter of the PO. Notwithstanding the foregoing, AN or its affiliate, and Supplier or its affiliate have both signed and delivered a written agreement that meets all of the following criteria, then such written agreement shall govern the transactions contemplated in the PO: (i) such agreement is in effect at the time the PO is issued, (ii) such agreement contains a provision indicating that such agreement is the entire agreement between the parties with respect to its subject matter, and (iii) the PO is issued under such agreement based on the subject matter of the PO or a statement in the PO expressly identifying such signed agreement (e.g., services agreement or supply agreement).
(b) Except as set forth in subsection (a) above, the terms and conditions set forth here shall supersede all provisions, terms, and conditions contained in any estimate, proposal, acknowledgement, receipt, or other communication from Supplier to AN (hereinafter referred to as “Supplier Documents”), and the rights of the parties shall be governed exclusively by the provisions, terms, and conditions of this Agreement, regardless of whether such Supplier Documents are delivered to AN before, contemporaneously with, or after delivery of the PO. If any Supplier Documents are delivered to AN, it is expressly understood and agreed that the terms and conditions of this Agreement shall prevail insofar as they may in any way conflict with the terms and conditions set forth in such Supplier Documents. Supplier hereby releases AN from any obligations that are set forth in such Supplier Documents to the extent such obligations are inconsistent with AN’s obligations under this Agreement. Supplier hereby represents and warrants, with the knowledge that AN is relying on such representation and warranty in entering into this Agreement, that Supplier shall not seek to enforce any provisions, terms, or conditions contained in a Supplier Document to the extent that such provisions, terms or conditions are inconsistent with the provisions, terms, or conditions of this Agreement.
No modification, amendment or waiver of any term or condition in the PO or herein shall be effective, unless set forth in a writing and agreed upon by AN and Seller.
2. Notices. All communications relating to the PO, to be effective, shall be addressed, if from Supplier to AN, to the AN’s representative, and if from AN to Supplier, to the Supplier’s representative, identified in the PO or as otherwise provided to the other party in writing.
3. Goods and Services set forth in the PO. Supplier shall (a) provide to AN the goods and services set forth in the PO; (b) keep AN advised of the status of the PO; (c) permit AN or its representatives to review and observe, from time to time upon reasonable notice, Supplier’s progress under or performance in connection with the PO; and (d) provide AN with such reports as are appropriate to the nature of the goods and services set forth in the PO and as may be reasonably requested by AN from time to time.
4. Inspection. All goods and deliverables are subject to final review, inspection and acceptance by AN notwithstanding any payment or initial inspection. Final inspection will be made by AN within a reasonable time after receipt of goods or deliverables.
5. Cancellation. AN may cancel the PO at any time and for any reason upon written notice to Supplier.
6. Invoice. Unless AN otherwise informs Supplier, Supplier shall issue a separate invoice for each shipment of goods delivered by Supplier and for each set of completed services. Supplier shall not issue any invoices before the goods or services are delivered to AN, unless otherwise agreed upon by both parties. Unless AN provides alternate written instructions, Supplier shall submit all invoices by email to firstname.lastname@example.org. Supplier shall invoice AN in accordance with the PO and include on all invoices (a) the PO number; (b) a description of goods and/or services provided; (c) the price, including a detailed description of the number of hours worked and fee per hour, if applicable; and (d) expenses and pass-through costs approved by AN, including details around such costs. AN shall not be obligated to pay any amounts not properly invoiced within 90 days after goods and/or services are provided, including any pass-through expenses that otherwise would have been reimbursable in accordance with the PO.
7. Payments. Except as otherwise expressly agreed by ASIC North and Supplier, AN shall pay Supplier within 30 days following AN’s receipt of Supplier’s invoice in accordance with Section 6 above; provided, however, that if ASIC North disputes in good faith any charges set forth in Supplier’s invoice, ASIC North shall not be required to pay such disputed charges until such dispute is resolved. Except for amounts expressly set forth in the PO, AN shall not be responsible for any (a) other charges, including charges for delivery, parts or services and (b) expenses of Supplier or any mark-ups on any expenses of Supplier.
8. Warranty. (a) Notwithstanding any other representation, warranty or agreement to the contrary, Supplier unconditionally represents and warrants the following: (i) the goods and services supplied pursuant to the PO shall be of merchantable quality, conform to applicable industry standards and practices and the specifications agreed upon by AN and Supplier, be suitable for AN’s intended uses and purposes in the ordinary course of its business and be free from defects in design, material and workmanship; (ii) all services provided by Supplier shall be provided by qualified personnel reasonably skilled and trained in the performance of the services and in a workmanlike and professional manner; (iii) any documentation provided to AN by Supplier shall meet reasonable standards of clarity and detail; (iv) Supplier, the goods and services provided to AN and the use thereof by AN shall not infringe on any party’s intellectual property rights, including any party’s confidential information, trade secrets, copyrights or patents; (v) Supplier is currently under no obligation to any party, nor will Supplier enter into any obligation with any party, that could interfere with Supplier delivering the goods or services in the PO; and (vi) Supplier shall comply with, and the goods and services provided by Supplier shall be in compliance with, all federal, state and municipal statutes, laws, ordinances and regulations.
(b) If Supplier, the goods and services provided to AN, or the use thereof by AN infringes on any party’s intellectual property rights, including any party’s confidential information, trade secrets, copyrights or patents, or the sale or use of such goods or services is enjoined, Supplier shall, at its expense and option, either procure for AN the right to continue to use such goods or services, replace such goods or services with equivalent non-infringing goods or services, or modify such goods or services so they become equivalent non-infringing goods or services, provided that such replacements and/or modifications are reasonably satisfactory to AN. The foregoing, however, shall not be construed to limit or exclude any other claims or remedies that AN may assert.
(c) All representations and warranties shall run to AN, its customers and the users of the goods or services or products into which such goods or services may be incorporated. All third party warranties and representations obtained by or applicable to Supplier in connection with any good and services in the PO are hereby deemed provided, in addition, for the benefit of AN, its affiliates and their users and customers. Nothing in this clause shall be construed as limiting in any way Supplier’s other warranties to AN.
9. Indemnification. Supplier agrees to indemnify, defend, and hold harmless AN, its affiliates (and its and their respective directors, personnel and agents) against any and all losses, claims, liabilities, damages and expenses, including without limitation reasonable attorney’s fees, (collectively, “Claims”) in connection with or arising out of the following: (a) any negligent or willful misconduct of Supplier, its personnel, agents, consultants or subcontractors; or (ii) Supplier’s (including its personnel, agents, consultants or subcontractors) breach of any provision of the PO or these terms and conditions.
10. Limitation of Liability. UNDER NO CIRCUMSTANCES WILL AN OR ITS AFFILIATES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, MULTIPLIED OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, OR PREJUDGMENT INTEREST OR ATTORNEYS’ FEES OR COSTS BASED ON CLAIMS OF SUPPLIER OR ANY OTHER PARTY ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, FAILURE OF ANY REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE. NOTWITHSTANDING THE FORM (e.g., CONTRACT, TORT OR OTHERWISE) IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT,
IN NO EVENT WILL AN OR ITS AFFILIATES BE LIABLE FOR DAMAGES OR LOSSES THAT EXCEED, IN THE AGGREGATE, THE GREATER OF (a) THE AMOUNT DUE FROM AN AS SET FORTH IN THE PO BUT NOT ALREADY PAID TO SUPPLIER FOR THE GOODS OR SERVICES PROVIDED BY SUPPLIER IN ACCORDANCE WITH THE PO AND THESE TERMS AND CONDITIONS OR (b) $1000. THIS SECTION WILL NOT APPLY ONLY WHEN AND TO THE EXTENT THAT APPLICABLE LAW SPECIFICALLY REQUIRES LIABILITY DESPITE THE FOREGOING DISCLAIMER, EXCLUSION AND LIMITATION.
11. Software. If the goods set forth in the PO include any software (including pursuant to a software-as-a-service offering), related documentation and/or updates thereto (collectively, “Software”) the following terms and conditions apply:
(a) Supplier shall retain all Intellectual Property Rights in and to the Software. Supplier hereby grants to AN a perpetual (unless otherwise limited in the PO to a specific duration), worldwide, non-exclusive license to access and use the Software for the business purposes of AN. If the PO limits the Software to use by a certain number of users, then AN may replace a user with another user from time to time, provided that the then-current number of users using the Software does not exceed such number. If Supplier determines that AN has exceeded rights to the Software in the PO through increased usage that is otherwise in accordance with these terms and conditions, Supplier shall promptly notify AN in writing of such excess usage and AN shall thereafter promptly eliminate such excess usage. If AN does not eliminate such excess usage, Supplier’s exclusive remedy shall be to invoice AN proportionally for such excess usage using the pricing set forth in the PO.
(b) AN may (i) make a reasonable number of backup or archive copies of any Software provided by Supplier and (ii) permit one or more third parties to exercise the rights granted to AN hereunder, provided that any such third party may only use the Software to provide goods to or perform services for AN. Except as expressly permitted herein, AN shall (i) not reverse engineer, decompile or otherwise discover the source code of the Software; (ii) not remove any copyright, trademark or other proprietary rights notices in the Software; and (ii) reproduce such notices on any copies of the Software. Supplier shall electronically deliver the Software such that no tangible media passes to AN.
12. Force Majeure. Supplier and AN, as the case may be, shall be excused for delays in performance or failure of performance to the extent arising from causes beyond such party’s reasonable control, including without limitation strikes, wars, fires, acts of terror or acts of God, such as floods and earthquakes. In the event of any such event or condition, the party whose performance is excused hereunder shall notify the other party promptly thereof and shall make diligent efforts to perform at its earliest opportunity. If Supplier’s performance is excused hereunder, AN may cancel the PO and Supplier agrees to provide to AN the assistance and information necessary for AN to make, have made, or otherwise procure replacement goods and services.
13. Shipping Terms. Unless AN otherwise informs Supplier, delivery of goods is to be F.O.B. AN’s office location or third party supplier location, and all amounts in the PO include all delivery charges thereto. If AN and Supplier mutually agree that goods are to be shipped F.O.B. shipping point, and AN has not designated routing, Supplier shall ship goods via the most economical method that will meet the delivery date provided to Supplier by AN. Supplier shall provide a packing list to AN for all shipments referencing the appropriate order number. Bills of lading, if any, shall also reference the appropriate order number.
14. Transportation Liability. Supplier agrees that in any case where freight regulations covering goods transported by common carrier establish a maximum limit on the carrier’s liability for loss or damage suffered in transit, Supplier will be liable to AN for any loss or damage in excess of such maximum limit.
15. Confidentiality; No Publicity. (a) Supplier shall not, without the prior written consent of AN, originate any publicity (including any news release or public announcement) nor use any logos, trademarks, service marks or names of AN.
(b) Supplier shall not, without the prior written consent of AN, disclose to any third party Confidential Information (as defined below) or use any such Confidential Information for any purpose other than in connection with providing to AN the goods and/or services set forth in the PO. “Confidential Information” shall mean any information that is not already in the public domain or independently developed or obtained by Supplier relating to the following: the existence of the relationship with AN; AN’s purchasing systems or practices (including, without limitation, descriptions of purchased items, quantities purchased and prices paid); the nature of the services performed or deliverables or goods delivered under the PO; or any data, designs or any other information relating to AN or its affiliates or their businesses, including the AN Provided Materials (as defined below). Notwithstanding the foregoing, Supplier may disclose Confidential Information (i) to Supplier’s employees having a need to know such information in connection with Supplier’s performance of the PO or (ii) to comply with applicable laws, court orders or government regulations, provided, in such case Supplier promptly provides notice thereof to AN prior to any disclosure to allow AN to comment thereon and to seek a protective order or similar relief. Supplier agrees that it will take appropriate action by instruction, agreement or otherwise with its employees who are permitted access to Confidential Information to notify them of the obligations hereunder. No right, title, interest or license to Supplier is either granted or implied under any trademark, patent, copyright or any other intellectual property right by the disclosure of the Confidential Information hereunder. Upon AN’s request at any time, all documents and other material containing Confidential Information, and any other data, designs, or other information furnished to Supplier (and copies thereof), shall be returned to AN or destroyed, as directed by AN.
16. Compliance. Any Suppliers who are issued a PO to help AN fulfill government contracts or subcontracts shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). 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 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.
In accepting a PO from AN, Supplier also agrees to comply with all the provisions set forth in 29 CFR Part 471, Appendix A to Subpart A (Executive Order 13496). These regulations provide notice of employee rights under the National Labor Relations Act (NLRA), the law that governs relations between unions and employers in the private sector.
17. Dispute Resolution. (a) Governing Law. The laws of the State of Vermont, without regard to principles of conflict of laws or AN’s place of residence, will govern these terms and conditions and the PO.
(b) Mediation. Prior to initiation of litigation, Supplier and AN must attempt to mediate, within a period of 45 days after the request for mediation, the dispute using a professional mediator from the American Arbitration Association (“AAA”) or like organization selected by agreement or, absent agreement, through selection procedures administered by the AAA. In no event will mediation delay commencement of litigation for more than 45 days or interfere with the availability of emergency relief.
(c) No Publicity. The mediation proceedings shall be confidential and neither party shall publicize the nature of any dispute or the outcome of any mediation proceedings except to the extent required by law, provided in such case the party required to make any disclosure informs the other party of such requirement to allow the other party to seek a protective order. The mediator, as the case may be, shall issue appropriate protective orders to safeguard each party’s confidential information.
18. Assignment. The PO and the rights and duties under the PO and these terms and condition shall not be assignable by either party without the prior written consent of the other party, which consent may be withheld in such other party’s sole discretion; provided, however, AN may assign its rights and obligations to anyone or more of its affiliates and may assign its rights and obligations in conjunction with the sale or other transfer of substantially all of its assets. The PO and these terms and conditions shall inure to the benefit of and be binding upon AN and Supplier and their respective successors and permitted assigns. Nothing contained in the PO or herein shall give to any other person any benefit or any legal or equitable right, remedy or claim.
19. Relationship. (a) The relationship of AN and Supplier is that of independent contractors, and nothing contained herein shall be construed to (i) give either party any right or authority to create or assume any obligation of any kind on behalf of the other or (ii) constitute AN and Supplier as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking.
(b) AN shall not be liable for any of its affiliates under any circumstances.
(c) The relationship between AN and Supplier is not one of exclusivity.
20. Miscellaneous. Headings used herein are for convenience only and shall not be used for interpretive purpose. A party’s failure to act with respect to another party’s breach of any provision contained herein does not constitute a waiver. If any provision herein is held to be invalid or unenforceable, such provision shall be narrowly construed, if possible, or otherwise deemed ineffective and the remaining provisions shall not be affected. The terms and conditions in the PO and herein will survive the fulfillment of the PO.