PURCHASE ORDER TERMS AND CONDITIONS FOR DENMARK
The Buyer and Seller wish to agree standard terms and conditions to cover purchases of the Deliverables made on a purchase order issued by Buyer to Seller. These standard terms and conditions shall be contained within this Agreement and shall be valid until such time as either party issues a written notice stating that the terms and conditions are no longer valid. Notwithstanding such a notice, all purchase orders issued prior to the date of this notice shall be deemed to be governed by these terms and conditions to the extent such purchase orders are not specifically covered by a written agreement signed by duly authorized representatives of both parties (see section 25). To the extent that the parties have not agreed otherwise in a written agreement signed by duly authorized representatives of both parties, the terms and conditions contained in this Agreement will apply for the Deliverables identified and/or listed in the purchase order. For the purposes of this Agreement, "Unisys A/S" is the "Buyer".
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 the purchase order for its convenience in accordance with Section 15 of the purchase order.
Assignment and Subcontract. Neither this Agreement, a purchase order nor any duty or right under this Agreement or a 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 the 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 the purchase order, Seller shall maintain in full force and effect on an "occurrence" basis and not "claims-made" basis the types and minimum limits of insurance specified below for all operations necessary and incidental to the performance under the purchase order, including without limitation, coverage of all automobile exposure, all property liability exposures and all contractual liability exposure.
- Definitions. "Deliverables" means the goods, materials, products, software, technical data, intellectual property, drawings, personal property, personnel, services or items identified and/or listed in the purchase order for Buyer's internal use and resale.
- 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 the 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 the 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 duly authorized representative(s). The Buyer shall have the right to revoke the offer to Seller at any time prior to Seller's acceptance, such acceptance as set forth above.
- 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 the purchase order at the price and schedule stated on the purchase order or its attachments. All such documentation shall be deemed to be a part of the purchase order.
- Packing and Shipping. Deliveries shall be made as specified on the 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 the 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 the purchase order. Title, risk and property shall pass to Buyer on receipt of Deliverables, but without prejudice to any pre-existing Intellectual Property Rights of the Seller. Deliverables cannot be delivered or performed earlier or later than the due delivery or performance date, otherwise, Buyer may at its discretion reject them. The Deliverables shall be delivered in conformance with any other requirements stated in the purchase order, which in the event of any conflict shall take precedence over this clause.
- Taxes and Duties. The prices stated in the purchase order include all applicable taxes and duties, except sales and use taxes, i.e. VAT, which by statute may be passed on to Buyer. Such sales and use taxes shall be separately itemized in Seller's invoice. The 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 the purchase order. Seller must inform Buyer immediately of any licensing details of any Deliverables that are subject to any export controls including but not limited to the USA Export Administration Regulations (including where appropriate the Export Control Commodity Number, Munition list entry etc). The Seller will indemnify Buyer against all losses and expenses incurred by Buyer as a result of Seller's failure to inform Buyer as aforesaid.
- Payment and Prices. Unless different payment terms are expressly stated on the purchase order, payment terms shall be forty-five (45) days from Buyer's receipt of Seller's correctly presented invoice, which invoice shall be issued by Seller following the date of delivery or performance. A "correctly presented" invoice will contain the purchase order number sent to the billing address on the 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 against any amount payable at any time by Buyer to Seller without prejudice to any other rights or remedies available to Buyer by law.
- 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 the 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 represents and warrants that with respect to electrical and electronic equipment provided by Seller pursuant to these purchase order terms and conditions for importation or delivery after August 13, 2005 into a Member State of the European Union, Seller shall comply with "producer" obligations defined and set forth by the Waste Electrical and Electronic Equipment (WEEE) Directive of the European Commission, as may be amended. Seller agrees to bear all responsibility for financing and addressing the end-of-life disposition of such electrical and electronic equipment including collection, recovery, recycling and disposal from Buyer, Buyer customer or other end user to the extent that such equipment was imported into a Member State of the European Union by Seller or bears a Seller brand name. For electrical and electronic equipment provided by Seller pursuant to these purchase order terms and conditions for importation or delivery on, or before, August 13, 2005 into a Member State of the European Union, Seller shall provide for the end-of-life collection, recovery, recycling or disposal of Seller electrical and electronic equipment from Buyer or Buyer customer in the event that such Seller equipment is being replaced by similar Seller equipment. If the Deliverables delivered under the purchase order do not meet the warranties specified in the purchase order, or other applicable warranties, Buyer may, at its option return from the contract concluded on the basis of the purchase order and 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 these purchase order terms and conditions. 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. Nevertheless, Buyer reserves all of its rights regarding the enforcement of any of its claims stemming from the breach of contract also in case, being aware of the breach of contract, it accepts the delivery. 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. Where the purchase order does not specify the duration of the contractual warranty and no longer contractual warranty period is determined by law or no different contractual warranty period is determined by mandatory law, the contractual warranty shall be one hundred and twenty (120) days for Deliverables that are software and twelve (12) months for Deliverables other than software.
- 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. Deliverables shall not be deemed accepted until an authorized representative(s) of the Buyer has issued a statement in writing to the Seller stating that the Deliverables are accepted. 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, withdraw the purchase order or any release or order subject to the purchase order for default, (a) if Seller fails to deliver the Deliverables strictly within the time specified in the purchase order, or if no time is specified, within a reasonable time; (b) if the Deliverables delivered do not conform to the purchase order or if Seller fails to perform any of the other provisions of the purchase order, or so fails to make progress as to endanger performance of the purchase order in accordance with its terms; or (c) if Seller's financial condition shall at any time become unsatisfactory to Buyer. Upon such withdrawal, 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 co-operate 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 the 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 the 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 the 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 the 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 the 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 the 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 the purchase order (i) all Deliverables shall be the sole and exclusive property of the Buyer, and all intellectual property, proprietary and industrial rights associated with Deliverables shall be owned exclusively by Buyer; (ii) by the 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 the 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. All technical, financial or business information disclosed by a party to the other under the purchase order which the disclosing party has not released publicly and reasonably considers to be confidential and/or in which the disclosing party has a protectable or proprietary interest, including without limitation, the existence and terms of the purchase order, and/or any audit information in connection therewith, and is clearly marked as "confidential", "proprietary", "restricted" or with a similar legend shall be deemed confidential information ("Confidential Information"). Each party shall hold the other party's Confidential Information in the strictest confidence and shall not disclose Confidential Information to any third party except as set forth in this Section 14: (i) as may be required by courts of competent jurisdiction; and (ii) as may be required on a "need to know" basis for the parties' employees and agents (who have executed a written agreement conforming to the confidentiality provisions of this Section 14) in connection with the performance of the purchase order. Confidential Information shall not include information that (a) is or becomes in the public domain other than by a breach of the purchase order on the part of the receiving party; (b) is or has become publicly available without restriction through no fault of the receiving party; (c) has been received without restriction from a third party lawfully in possession of such information; (d) was independently developed without use or reference to the other party's Confidential Information; or (e) was already lawfully in a party's possession, without being subject to a confidentiality obligation of either the other party or a third party, at the time of receipt of the other party's Confidential Information. Each party shall exercise the same degree of care for the Confidential Information of the other party as it uses to protect its own Confidential Information, but in any event, not less than reasonable care, including, without limitation, the requirements of this purchase order.
- Termination. At any time, Buyer, at its option, may terminate the purchase 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 the 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, the 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 the purchase order prior to notice of termination and shall in no event exceed the total amount of the 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 the purchase order.
- Compliance with Law and Export Regulations. Each party shall comply with all applicable law, including without limitation, export control laws. Deliverables and services provided under the purchase order may be subject to U.S. and other government export control regulations. Seller assures that it will comply with all applicable export laws and regulations related to the use, disclosure, export or re-export of these Deliverables and services. Further, Seller shall conduct export compliance reviews and screening in relation to all Seller personnel involved in the purchase order, which as a minimum shall include searches against the US and EU Denied Parties lists and any similar lists maintained by the relevant national authorities
- Export Regulations. Deliverables provided under the purchase order may be subject to U.S., Denmark and other government export control regulations. Seller assures that it will :
- comply with all applicable export laws and regulations related to the use, disclosure, export or re-export of these Deliverables
- conduct export compliance in relation to all Seller personnel involved in the purchase order, which as a minimum shall include searches against the US Denied Parties lists and any similar lists maintained by the relevant national authorities. At the time of this Agreement such US lists include:
- Denied Persons List - Individuals and entities that have been denied export privileges. Any dealings with a party on this list that would violate the terms of its denial order are prohibited.
- Unverified List - End-users who BIS has been unable to verify in prior transactions. The presence of a party on this list in a transaction is a "Red Flag" that should be resolved before proceeding with the transaction.
- Entity List - Parties whose presence in a transaction can trigger a license requirement supplemental to those elsewhere in the Export Administration Regulations (EAR). The list specifies the license requirements and policy that apply to each listed party.
- Nonproliferation Sanctions - Parties that have been sanctioned under various statutes. The linked webpage is updated as appropriate, but the Federal Register is the only official and complete listing of nonproliferation sanctions determinations.
- AECA Debarred List - Entities and individuals prohibited from participating directly or indirectly in the export of defense articles, including technical data and defense services. Pursuant to the Arms Export Control Act (AECA) and the International Traffic in Arms Regulations (ITAR), the AECA Debarred List includes persons convicted in court of violating or conspiring to violate the AECA and subject to "statutory debarment" or persons established to have violated the AECA in an administrative proceeding and subject to "administrative debarment."
- Specially Designated Nationals List - Parties who may be prohibited from export transactions based on OFAC's regulations. The EAR require a license for exports or re-exports to any party in any entry on this list that contains any of the suffixes "SDGT", "SDT", "FTO", "IRAQ2" or "NPWMD"."
- maintain documentary evidence of reviews and screening and make such evidence available to Buyer for auditing purposes
- Employer's Liability - as required by code, ordinance or government regulation of the state, nation territory or province where services are to be performed.
- Public 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 1.000.000USD per occurrence for bodily injury and property damage.
The above insurance shall be placed with reputable insurance companies licensed to do business in the country(ies), state(s) or province(s) where the services are being performed. Certificates of Insurance required by this Section shall contain a provision that coverages afforded under the policies will not be cancelled, allowed to expire or the limits materially reduced until at least thirty (30) days' prior written notice. Such policies shall name Buyer, its directors, officers, employees and agents as additional insured and provide that coverage may not be materially changed, cancelled or non-renewed without thirty (30) days prior written notice to Buyer. The insurance requirements set forth in the terms and conditions of this Agreement are not intended and shall not be construed to modify, limit or reduce the indemnification made in this Agreement by Seller to Buyer or to limit Seller's liability under this Agreement or a purchase order to the limits of the policies required to be maintained by Seller under this Agreement or in any other manner. Seller shall furnish Buyer with certificates of insurance for the coverages required under this purchase order promptly upon Buyer's written request. Such insurance shall be primary to, not contributing with, and not in excess of, coverage which Buyer may carry. The insurance afforded by these policies applies separately to each insured against whom claim is made or suit is brought, in the same manner as such insured would be covered if the policy insured only such party.
If the purchase order requires that the Seller sends its employees to Buyer' premises for any purpose in connection with the purchase order then, notwithstanding any degree of technical supervision exercised by Buyer or any instructions issued, such employees will remain employees of the Seller alone. Accordingly, it is an express condition that the Seller effects and maintains in force for the benefit of all parties, full employers liability insurance in respect of such employees
Health & Safety. Seller warrants that the Deliverables will comply with all relevant regulatory approvals and without limiting the foregoing will comply with the Danish Working Environment Act and with any regulations published thereunder or amendments thereto or any equivalent relevant non-Danish legislation and that the Deliverables supplied, when used properly in conjunction with Seller's instructions will not represent a health or safety risk. Seller shall ensure that its personnel comply with all security and other office procedures and regulations implemented or otherwise required by Buyer but not limited to Buyer's environmental policy as made known to Seller if the Seller's personnel are to provide Deliverables on Buyer's premises or Buyer's customer premises.
Relationship of Parties. The Seller and Buyer are independent contractors. Nothing in the 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 the purchase order into such agreement (or otherwise makes the purchase order supplementary to such agreement) and such agreement provides for an order of precedence, the purchase order, together with any data referenced in Section 3 of the 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 the 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 the purchase order shall be binding unless in writing and signed by Buyer's duly authorizedrepresentative(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 Agreement shall be construed in all respects in accordance with the substantive laws of Denmark and the parties agree to submit to the exclusive jurisdiction of the Danish Courts.
Survival. Any provision in the purchase order which, by its nature, would reasonably be expected to be performed after the termination of the purchase order shall survive and be enforceable after such termination.
Supplementary Provisions to Government Contracts. For Deliverables involving or subject to a government contract, the applicable provisions are contained in the attached supplement and made a part of the purchase order.
Data Protection. - In the event that personal data is to be handled by the Seller under this purchase order, the Seller shall ensure full compliance with all laws related to data protection, including the Danish Act on Processing of Personal Data. Seller shall only process personal data in accordance with the purchase order and Buyer's instructions. The Seller warrants that in accordance with the said Act that it has adequate safety levels, including technical and organizational security measures, for the processing of personal data, where applicable, under a purchase order. The parties expressly agree that Buyer is entitled to disclose this Agreement, the individual purchase orders, any information within the scope thereof and any information regarding Seller in relation thereto to any member of the Unisys Group and such disclosure shall not be deemed a breach of the provisions under Section 14.
Compliance with Law and Export Regulations. - Each party shall comply with all applicable laws, including without limitation, government export control, privacy and data protection laws, and anti-bribery laws.
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 Conduct, which may change from time to time, is located at: http://www.app3.unisys.com/offerings/poterms/code.asp.