The Purchase Order, these Purchase Order terms, and any documents incorporated by reference constitute the complete agreement (“Agreement”) between the Buyer and Vendor identified on the Purchase Order issued by Buyer and govern Vendor’s performance of Services and provision of Goods, or any combination thereof. Capitalized terms used but not defined herein have the meanings ascribed to such terms in the Purchase Order. This Agreement is effective as between Buyer and Vendor as of the effective date of the Purchase Order. Buyer rejects any additional or different terms or conditions proposed by Vendor, whether contained in any forms, invoices, correspondence, or on Vendor’s website, unless specifically agreed to by Buyer in writing, and such additional or different terms or conditions shall have no effect. No site usage agreement or any other click through agreement on a website will have any binding effect on Buyer, whether or not Buyer clicks on an “ok,” “I accept,” or any similar acknowledgment.
- DELIVERY – Time is of the essence. Vendor shall deliver Goods and perform the Services within the time stated on the Purchase Order. Vendor shall be the “Importer of Record”, as defined by applicable law, for all imports into the United States. Vendor will not obligate Buyer to be an importer or exporter into or out of any country. Buyer's production schedules are based upon the reliance that Vendor will affect delivery by the date specified, or as amended by mutual consent, and Buyer may cancel or purchase elsewhere and hold Vendor liable for any loss or damage if delivery is not affected as agreed upon. Buyer may, from time-to-time, change delivery schedules or direct temporary suspensions of scheduled shipments by written supplements to the Purchase Order. Unless specified elsewhere in the Purchase Order, Vendor shall ship all Goods (a) originating in the United States, FOB Vendor shipping point (Uniform Commercial Code); and (b) originating outside the United States, DDP Buyer- specified destination (Incoterms® 2010). Subject to the preceding sentence, Vendor shall ship in accordance with additional instructions provided by Buyer, and ensure that a packing slip accompanies each shipment. Vendor is liable to Buyer for damaged Goods resulting from improper packing or marking. Title to Goods will pass to Buyer when the Goods are delivered by Vendor to the location specified by Buyer in the Purchase Order. Passing of title upon delivery will not constitute acceptance of the items by Buyer.
- QUANTITIES - Vendor shall furnish the proper quantity called for on the Purchase Order. Buyer shall have no obligation to accept any variation in the quantities specified herein. Buyer shall have the right to return any Goods received in excess of Purchase Order requirements for credit or refund, at Buyer’s option, and at Vendor’s expense. Vendor shall promptly notify Buyer of any potential shortages or any pending disputes, litigation or any other circumstance which may jeopardize Vendor’s or any sub-tier seller’s ability to perform under the Agreement. In the event of a potential shortage of Goods, Vendor will prioritize Buyer and allocate the available inventory in a manner which ensures that Vendor’s demands are met in accordance with the specified shipping terms
- WARRANTY - Vendor warrants that all Goods shall: (a) conform to all written Buyer specifications, samples or models provided to Vendor; (b) be free from defects in design, workmanship and materials; (c) be new and free from liens or encumbrances; (d) be adequately packaged, marked, and labeled in accordance with Buyer’s requirements and all applicable laws; (e) be merchantable and fit for the intended purpose; (f) not infringe on the Intellectual Property (as defined below) of any third party; and (g) are in compliance with all applicable laws, and not contain any materials or substances prohibited by applicable law or by any national or international regulations applicable to Vendor or Buyer, including without limitation, all applicable chemical control laws including the Toxic Substances Control Act, 15 U.S.C. § 2601, et seq. Inspection, testing, acceptance or use of the Goods will not affect Vendor’s obligations under this warranty. With respect to Services, Vendor warrants that (a) it will perform Services in a timely, safe, competent and professional manner and in accordance with generally accepted industry standards; (b) its employees and agents providing Services will have the proper skill, training and background so as to be able to perform the Services in a competent and professional manner, and where applicable, shall be certified, licensed or otherwise authorized as necessary to perform the Services; and (c) the Services and any deliverables shall conform to any applicable specifications or the Purchase Order. Without limiting any rights that Buyer may have at law by reason of any breach of warranty, Vendor, at its expense, shall promptly repair or replace any Goods and reperform Services that do not meet the warranty set forth in this section 3. Goods that are repaired or replaced and Services that are reperformed pursuant to this warranty will be further warranted, according to the terms hereof. Notwithstanding anything to the contrary in this section 3, if Vendor’s reperformance of Services does not conform to the warranties herein after a third attempt by Vendor, Buyer shall, at its option, be entitled to any combination of the following (i) recover all fees paid for the applicable Services; (ii) contract with a third party for the reperformance of the Services at Vendor’s sole expense; and (iii) reperform the Services itself and recover from Vendor reimbursement of fees attributable to such reperformance.
- BUYER INTELLECTUAL PROPERTY – All copyrights, trademarks, trade secrets, patents, applications for patent, moral rights, or other intellectual or proprietary rights recognized by any jurisdiction, whether now existing or hereafter arising, (collectively, “Intellectual Property”) provided or made available to Vendor by or on behalf of Buyer (“Buyer Preexisting IP”) will remain the property of Buyer and its licensors. Buyer hereby grants to Vendor a limited, revocable, non-exclusive license, without the right to sublicense, to use the Buyer Preexisting IP solely as necessary for Vendor to fulfill its obligations under the Purchase Order and for no other purpose. Subject to section 5, Buyer shall own all Intellectual Property conceived, originated or developed, in whole or in part, that arises from or relates to the Services or any Buyer Preexisting IP (collectively, the “Buyer Intellectual Property”). The Buyer Intellectual Property, having been specially ordered and commissioned by Buyer, constitutes a work a “work made for hire” under the Copyright Act of 1976. To the extent any Buyer Intellectual Property does not qualify as a “work made for hire” under the Copyright Act of 1976, Vendor hereby assigns to Buyer, for no additional consideration, all of Vendor’s rights, title and interest in and to the Buyer Intellectual Property. Upon Buyer’s request, Vendor shall, and shall cause its employees and agents to, promptly execute all documents, testify in any legal proceedings and generally do everything reasonably necessary to effect assignment and vest ownership in Buyer and enable Buyer, its successors, assigns and nominees to secure and enjoy the full and exclusive benefits of the Buyer Intellectual Property. To the extent any of Vendor’s rights in the Buyer Intellectual Property, including any moral rights, are not capable of assignment under the law, Vendor hereby irrevocably and unconditionally waives all enforcement of such rights against Buyer and its licensees and sublicensees to the maximum extent permitted under the law. Vendor will not file any patent application, or seek any other form of Intellectual Property protection, for any Buyer Intellectual Property.
- VENDOR INTELLECTUAL PROPERTY – All Intellectual Property (a) owned by Vendor prior to entering into the Purchase Order; or (b) acquired or developed by Vendor after the date, and outside the scope, of this agreement without use or reference to any Buyer Preexisting IP or Buyer Intellectual Property, (collectively, the “Vendor Intellectual Property”) belongs to Vendor. Vendor hereby grants to Buyer a perpetual, irrevocable, non-exclusive license, with the right to sublicense, to use the Vendor Intellectual Property as is reasonably necessary for Buyer and its licensees and sublicensees to use the Goods and Services and otherwise perform under the Purchase Order.
- ADVERTISING - Vendor shall not, without first obtaining written permission from the Buyer, in any manner advertise or publish the fact that Vendor has furnished or contracted to furnish to Buyer any Goods, Buyer Materials or Services, nor shall Vendor in any manner advertise or utilize for any other purpose Buyer's part numbers or identification data.
- TERM AND TERMINATION - The Purchase Order will expire upon the later of completion of the Services or acceptance of the Goods or Services. Buyer may terminate the Purchase Order in whole or in part, for any reason upon notice to Vendor, and upon such termination, Vendor shall stop work as directed by Buyer and Buyer shall pay Vendor for the Goods or Services covered by the Purchase Order then completed and delivered in accordance with all the terms set forth in the Purchase Order. In no event shall Vendor be entitled to anticipatory profits. All Goods and Services for which compensation has been paid to Vendor shall, upon termination, become the property of Buyer. In addition, Buyer may immediately terminate the Purchase Order without liability to Vendor if: (a) Vendor breaches any material term of the Purchase Order and such breach is not cured within 30 days after notice is given to Vendor specifying the breach in reasonable detail; (b) Vendor commences a voluntary case under title 11 of the United States Code or the corresponding provisions of any successor laws; (c) anyone commences an involuntary case against Vendor under title 11 of the United States Code or the corresponding provisions of any successor laws and either (i) the case is not dismissed by midnight at the end of the 60th day after commencement or (ii) the court before which the case is pending issues an order for relief or similar order approving the case; (d) Vendor fails generally to pay its debts as they become due (unless those debts are subject to a good-faith dispute as to liability or amount) or acknowledges in writing that it is unable to do so; or (e) Vendor, its principals, including its shareholders, members and owners (collectively, “Principals”), or its director is placed on any prohibited parties list established under U.S. laws or regulations, including to those referred to in Executive Order 13224 (“Prohibited Parties List”), or Vendor, its Principals or directors, contrary to U.S. laws or regulations, employs or does business, directly or indirectly, with a party appearing on any Prohibited Parties List.
- INDEMNITY - Vendor shall indemnify, hold harmless and defend Buyer and its affiliates and dealers, and the officers, directors, employees, agents, servants, invitees and assigns of each (collectively, the “Indemnitees”) against all losses, damages, penalties, judgments, liabilities, settlements and expenses, including attorney fees and other expenses of litigation, settlement or defense (collectively, “Indemnifiable Losses”) arising out of or resulting from any claim, suit, proceeding or cause of action (each, a “Claim”) in connection with (a) any breach or alleged breach of Vendor’s representations, warranties or obligations; (b) an allegation that the use of any Good or Vendor’s performance of any Service infringes or misappropriates any third party’s copyright, trademark, trade secret, patent, application for patent, moral right or other intellectual or proprietary right recognized by any jurisdiction, whether now existing or hereafter arising; (c) any loss of data or Confidential Information of the Indemnitees or their respective customers related to a cybersecurity incident of the Vendor’s systems, or in any way related to the Goods or Services provided by Vendor; (d) the negligence or willful misconduct of Vendor or its employees, agents, servants, subcontractors or vendors; or (e) ) death or any bodily injury, damage to property or any other damage or loss resulting or claimed to result in whole or in part from any defect in Vendor’s or its subcontractor’s workmanship or defects in any Good sold to, or Services supplied to, Buyer. If, by reason of any suit or threatened action, Buyer is enjoined from using any Good or Vendor is enjoined from performing any Service or part thereof, Vendor shall, at its own expense, (y) procure the right for Buyer to continue use of the Goods or the right for Vendor to perform the Services; or (z) replace or modify the Goods or performance of Services so that the Goods or Services becomes non-infringing and non-misappropriating, provided such replacements or modifications are at least equivalent to the allegedly infringing or misappropriating Goods or Services.
Vendor’s agreement to indemnify, hold harmless and defend as set forth in this section will not be negated or reduced by virtue of Vendor’s insurance carrier’s denial of insurance coverage of the occurrence or event that is the subject matter of the claims or refuse to defend Vendor or Buyer. In addition, Vendor shall pay all expenses, including attorney fees and all other expenses of litigation incurred by Buyer, to enforce the foregoing agreement to indemnify, hold harmless and defend Buyer or to enforce the insurance carrier’s obligations.
- CHANGES – Buyer may make changes within the general scope of the Purchase Order, including without limitation, changes to the specifications, materials, packaging, method of transportation and time and place of delivery, at any time by notifying Vendor of such changes. Vendor shall give Buyer prompt notice if the proposed changes affect the price or delivery schedule for the Goods or Services. If Buyer proceeds with the changes, the parties will negotiate an adjustment to the price or delivery schedule consistent with the Purchase Order. Vendor will make no changes to the Goods or Services, including without limitation, the specifications, design, materials, manufacturing location, or processes, without Buyer’s prior written consent.
- COMPLIANCE WITH LAWS - Vendor shall comply with all applicable state, federal and local laws, rules and regulations, including laws relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants. Without limiting the generality of the foregoing, Vendor, in accepting the Purchase Order, represents that the Goods to be furnished or the Services to be rendered hereunder were or will be produced or performed in compliance with all applicable requirements of the Fair Labor Standards Act of 1938, as amended, and of all valid and applicable regulations and orders of the Administrator of the Wage and Hour Division issued thereunder. Vendor represents that it complies with the standards, rules and regulations of OSHA and that the Goods to be furnished and Services to be rendered will be in conformity with the standards, rules, and regulations of OSHA. To the extent any Goods, in whole or in part, constitute a “hazardous chemical”, as that term is defined in the OSHA Hazard Communication Standard 29 CFR 1910.1200, Vendor shall ensure that a Safety Data Sheet (“SDS”) accompanies the initial shipment with a second copy forwarded to the Buyer. The SDS must be in compliance with the most recent revision to the Hazard Communication Standard. Unless Buyer receives an SDS, Vendor represents and warrants to Buyer that the Goods, in whole and in part, are not hazardous products subject to these regulations. Goods will be subject to return at Vendor’s expense and risk if Buyer has not received a required SDS prior to or concurrent with delivery. Upon request of the government or Buyer, Vendor shall furnish certificates of compliance with all laws, rules or regulations that may be applicable to the Purchase Order.
- INSPECTION – Buyer shall have the right to inspect and test the Goods ordered hereunder during normal working hours at any place, either before, during, or after manufacture. The exercise of this right of inspection and test, however, will in no way relieve the Vendor of its obligation to furnish all Goods in strict accordance with the terms of the Purchase Order. If inspection and test is made on the premises of the Vendor or its supplier, the Vendor shall furnish without additional charge all reasonable facilities and assistance for the safety and convenience of the inspectors in the performance of their duties. All inspections and tests will be performed in such a manner as not to delay the work unduly. Final inspection and acceptance will be on Buyer's premises. If Buyer reasonably determines that a Good is defective in material or workmanship or otherwise out of compliance with the Purchase Order, Buyer shall notify Vendor specifying the details of noncompliance. Vendor shall, on Buyer’s instruction: (a) promptly correct or replace, at Vendor’s expense, all nonconforming Goods; or (b) refund the fees for such nonconforming Goods, together with all expenses incurred by Buyer in connection therewith. Vendor shall remove nonconforming Goods, or, if permitted or required by Buyer, correct in place, by and at the expense of the Vendor promptly after notice, and shall not thereafter tender such nonconforming Goods for acceptance unless all previous rejection or requirement of correction is disclosed.
- TAXES – Vendor shall pay all applicable taxes, duties, fees, tariffs and other charges imposed or assessed by any governmental or regulatory bodies, with respect to the Goods, the taxable incident of which occurs prior to transfer of title to the Goods to Buyer. If the Goods require importation into the United States, importation and payment of associated duties, fees, tariffs and taxes will be the sole responsibility of Vendor. Except for those related to importation, Buyer shall pay all applicable taxes, duties, fees, tariffs and other charges imposed or assessed by governmental or regulatory bodies, with respect to the Goods, the taxable incident of which occurs upon or after transfer of title to the Goods to Buyer. Buyer is not responsible for payment of any franchise taxes or taxes based in whole or part on Vendor’s net or gross income, gross receipts, gross revenue, or capital or net worth. Vendor shall cooperate with Buyer regarding any tax information and reporting requirements imposed upon Buyer pertaining to the Purchase Order and to the payments made hereunder.
- INVOICES AND PAYMENT –Vendor shall ensure that all invoices include: (a) clear reference to the Purchase Order; (b) itemized costs, in the currency of the United States; (c) shipping costs and identification of the “shipped from” location, if applicable; and (d) any applicable taxes allowed under section 17. Buyer, acting in good faith, shall have the right to protest any charge contained in any invoice. In the event of protest, Buyer shall have the right to withhold the disputed amount from any payment otherwise due hereunder, without interest accruing thereon. Buyer’s payment of an invoice will not preclude or affect Buyer’s right to later dispute any charge made. Upon notice of dispute, Vendor shall furnish Buyer with satisfactory proof as to the disputed charge or modify or withdraw the disputed charge from the invoice. Buyer shall pay Vendor the fees for Goods and Services properly invoiced by Vendor within payment terms as stated in the Purchase Order, and if no payment terms are provided, then within 60 days after receipt of such invoice. Buyer shall have the right to deduct any amounts otherwise owed by Vendor to Buyer from any amounts owed by Buyer to Vendor in connection with the Purchase Order.
- NONDISCRIMINATION IN EMPLOYMENT - Buyer is an equal opportunity employer and federal contractor or subcontractor. Consequently, the parties, as applicable, shall abide by the requirements of 41 CFR 60-1.4(a), 41 CFR 60- 300.5(a) and 41 CFR 60-741.5(a) and that these laws are incorporated herein by reference. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities. These regulations also require affirmative action in the employment and advance in employment, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. The parties shall also abide by the requirements of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), relating to the notice of employee rights under federal labor laws.
- EXAMINATION OF RECORDS - If the Purchase Order is for an amount exceeding $1,000 and a government contract number appears on the face of the Purchase Order, the Comptroller General of the United States, or any of his duly authorized representatives, shall, until the expiration of three years after final payment under the Purchase Order have access to and the right to examine any directly pertinent books, documents, papers, and records of Vendor involving transactions related to the Purchase Order.
- DELEGATION AND ASSIGNMENT – Without Buyer’s prior written consent, Vendor shall not subcontract any portion of the work, delegate any of its duties nor assign any of its rights or claims under the Purchase Order and any such attempted delegation or assignment will be void. All claims for monies due or to become due from Buyer will be subject to deduction by the Buyer for any set-off or counterclaim arising out of this or any other of the Buyer's purchase orders with Vendor whether such set-off or counterclaim arose before or after any such assignment by Vendor.
- INSURANCE – To the extent the Purchase Order will result in Vendor or its employees, agents, servants, subcontractors or vendors entering any of Buyer’s or any of Buyer’s affiliate’s sites and without limiting in any way the scope of any obligations or liabilities assumed hereunder by Vendor, Vendor shall keep, and cause its subcontractors and vendors to keep, in full effect and maintain at its expense the following policies of insurance, alone or in conjunction with blanket or excess liability policies, with the specified limits of liability during the term of the Purchase Order and for a period of five years thereafter:
- Workers’ Compensation and Employer’s Liability Insurance in full compliance with the laws of the state and country in which the work is to be performed or the country of hire (whichever is applicable), including laws relating to self-insurance, if applicable. Employer’s Liability Insurance with limits of not less than $1,000,000 per employee per accident, $1,000,000 disease aggregate and $1,000,000 per employee per disease.
- Commercial General Liability Insurance (including coverage for Contractual Liability, Premises-Operations, Completed Operations-Products, Independent Contractors, advertising, and personal injury) with limits of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate in any policy year. This coverage may be provided with a combination of primary and excess insurance policies. Vendor shall name Buyer and its directors, officers, employees and agents as a Primary/Non-Contributory additional insured on any such policy covering ongoing and completed operations.
- Comprehensive Automobile Liability Insurance including coverage for all Vendor owned (if any), non-owned, leased and hired vehicles providing coverage for bodily injury and property damage liability with combined single limits of not less than $1,000,000 per occurrence, except as may otherwise be required by law. Vendor shall name Buyer and its directors, officers, employees and agents as a Primary/Non-Contributory additional insured on any such policy.
- Umbrella Insurance providing coverage in excess of its primary commercial general liability, automobile liability and employer’s liability policies in an amount not less than $1,000,000 per occurrence. Vendor shall name Buyer and its directors, officers, employees and agents as a Primary/Non-Contributory additional insured on any such policy covering ongoing and completed operations. Based on the scope of work to be performed, Buyer shall have the right to require a larger limit.
- If Vendor will have access to Buyer’s information technology network or systems, or any of Buyer’s customer data, Vendor is required to provide Cyber Liability insurance with limits of $5,000,000 per occurrence.
- Buyer shall have the right to require Professional Liability Insurance, Environmental Liability Insurance, Crime Insurance or any combination thereof based on the scope of services to be performed or goods to be provided by Vendor to Buyer, in which case additional insurance requirements will apply.
Vendor shall procure the proceeding insurance policies with insurance companies that maintain a rating of at least “A” and be at least a Financial Size Category VII, as both criteria are defined in the most current publication of Best’s Policyholder Guide (or an equivalent or superior rating for insurance companies located outside of the United States, to the extent such companies are not listed in the most current publication of Best’s Policyholder Guide). Vendor shall provide Buyer with certificates of insurance evidencing compliance with this schedule (including evidence of renewal of insurance) signed by Vendor’s insurance brokers or authorized representatives of the respective carriers for each year that this agreement is in effect. Vendor shall use commercially reasonable efforts to provide Buyer with at least 30 days prior written notice of cancellation, nonrenewal or material changes thereof. Vendor shall ensure that its policies provide a waiver of subrogation in favor of Buyer.
- BUYER POLICIES – For the duration Vendor or any of its employees, agents, servants, subcontractors or vendors are on-site at Buyer’s or any of its affiliate’s facilities, Vendor shall ensure that all such parties comply with the policies that are specific to the facility, made available to the Vendor upon request. Until such time as Vendor executes a separate agreement with Buyer regarding Buyer’s information security requirements, Vendor shall not, and shall ensure that its employees and subcontractors do not, access any non-public Buyer information system.
- UTILIZATION OF SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS - In connection with the performance of work under the Purchase Order and to the extent the Purchase Order offers further subcontracting opportunities, the Vendor shall comply with FAR 52.219-8 and, if the Purchase Order exceeds $500,000, FAR 52.219-9.
- INDEPENDENT CONTRACTOR – Vendor and Buyer intend that Vendor is an independent contractor to Buyer. Nothing in the Purchase Order should in any way be construed to constitute Vendor as an agent, employee or representative of Buyer. No fiduciary, trust or advisor relationship, nor any other relationship imposing vicarious liability exists, or will exist, between the Buyer and Vendor under the Purchase Order.
- FORCE MAJEURE - Neither party shall be liable for delays or any failure to perform its obligations under this agreement due to causes beyond its reasonable control (each a “Force Majeure Event”), including, but not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Upon the occurrence of a Force Majeure Event, the delayed party shall promptly notify the other party that a Force Majeure Event has occurred, its effect on performance, and how long that party expects it to last. During a Force Majeure Event, the delayed party shall use reasonable efforts to limit damages to the other party and to resume its performance under this agreement. Notwithstanding anything in this section to the contrary, Vendor shall continue performance of any obligation not affect by the Force Majeure Event.
- CONFIDENTIALITY - “Confidential Information” means the Purchase Order and any information (whether oral, written or electronic form) of Buyer disclosed to Vendor, that a reasonable person, given the nature and circumstances of disclosure, would know to be confidential or proprietary, whether or not marked or identified as confidential, including without limitation, all employee and customer data of the Buyer. Vendor shall (a) use Confidential Information solely in performance of the Purchase Order; (b) treat the Confidential Information as confidential, using a reasonable care to maintain its confidentiality and at least the same degree of care as Vendor uses to maintain the confidentiality of its own confidential information; and (c) prevent disclosure of Confidential Information to third parties; provided, however, disclosure may be made on a confidential basis to Vendor’s parent, subsidiary and affiliate companies, and their officers, directors, employees and contract employees, agents, consultants, financing sources and advisors (collectively, “Representatives”) who need to know in connection with the Purchase Order, so long as the Representatives are aware of the confidential nature and are bound to preserve the Confidential Information’s confidentiality. Vendor shall be responsible for ensuring that its Representatives keep the Confidential Information confidential, do not disclose or divulge the same to any unauthorized person or entity and abide by the use restrictions contained herein. If Vendor or any of its Representatives loses or makes an unauthorized disclosure of the Confidential Information, it shall promptly notify Buyer and use reasonable efforts to retrieve the lost or wrongfully disclosed Confidential Information. Upon Buyer’s request, Vendor shall promptly return all Confidential Information. This section will not apply to information of Buyer that is: (v) in the possession of Vendor on a non-confidential basis prior to disclosure; (w) known or becomes known publicly through no fault of the Vendor; (x) independently developed by Vendor without use or reference to the Confidential Information and without violating any obligation under the Purchase Order; (y) lawfully obtained by the Vendor from a third party who is not otherwise bound by a confidentiality agreement with either of the parties; or (z) released without restriction by Buyer.
- INFORMATION SECURITY – If Vendor’s Services include access to Buyer’s information technology systems or network, or Buyer’s employee or customer data, and without limiting Vendor’s confidentiality obligations under the Agreement, Vendor shall be responsible for establishing and maintaining an information security program (including any relevant subcontractors) that is designed to: (i) ensure the security and confidentiality of Buyer’s data; and (ii) protect against any threats or hazards to the security or integrity of Buyer’s data; and (iii) protect against unauthorized access to or use of Buyer’s data; and (iv) ensure the proper deletion of Buyer’s data; and (v) ensure that all Vendor’s subcontractors, if any, comply with the foregoing. If Vendor’s information security system is breached, Vendor must timely notify Buyer of such breach via e-mail and phone call. The minimum information security requirements will be a material obligation of Vendor in its performance of the Services.
- WAIVER – No waiver or satisfaction of a condition or nonperformance of any obligation under the Purchase Order will be effective unless it is in writing and signed by the party granting the waiver.
- SEVERABILITY - If a dispute between the parties arises out of this agreement or the subject matter of this agreement, the parties desire that the court interpret this agreement as follows: (a) with respect to any provision that the court holds to be unenforceable, by modifying that provision to the minimum extent necessary to make it enforceable or, if that modification is not permitted by law, by disregarding that provision; and (b) if an unenforceable provision is modified or disregarded in accordance with this section, by holding that the rest of the agreement will remain in effect as written; and (c) if modifying or disregarding the unenforceable provision would result in a failure of an essential purpose of this agreement, by holding the entire agreement unenforceable.
