PURCHASE ORDER TERMS AND CONDITIONS
To the extent that the parties have not agreed otherwise in a written agreement signed by duly authorized representatives of both parties, the following terms and conditions will apply for the goods, materials, products, software, technical data, intellectual property, drawings, personal property, personnel, services or items ("Deliverables") identified and/or listed in this purchase order. For the purposes of this purchase order, "Unisys Nederland N.V," is the Buyer.
- Seller will provide the Deliverables identified and/or listed in this purchase order for Buyer's internal use and resale within the time plan set forth therein. If no time plan is set forth in this purchase order, Seller will provide the Deliverables without delay.
- Where a portion of the Deliverables includes services as part of this purchase order, Seller may not reassign or substitute its personnel during a particular assignment unless specifically agreed in writing by an authorized representative(s) of Buyer's company.
- Deliveries shall be made to the delivery address in the purchase order without charge for delivery costs, insurance, packaging or storage unless otherwise agreed in writing by Buyer. Deliverables shall be suitably packed. The risk of loss shall pass upon written acceptance of the Deliverables by an authorized representative(s) of Buyer. Title to the Deliverables shall pass upon delivery to the delivery address.
- 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 an authorized representative(s) of Buyer. .
- Unless different payment terms are expressly stated in 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 the purchase order number sent to the billing address on the purchase order. However, such invoice shall not be sent by Seller to Buyer prior to Buyer's written acceptance of the Deliverables.
- Buyer shall be entitled to set off any amount owing from Seller to Buyer against any amount payable by Buyer to Seller.
- Where a disputed payment exists (i.e., a payment that is erroneous, miscalculated or where there has been a delay or defect in the Deliverables) and provided that the Buyer acts in good faith, the Buyer shall be entitled to withhold payment of the part or parts of the invoice comprising the disputed payment. Seller may impose a late payment charge on any overdue amounts equal to Euribor plus 2%. However, Seller may not impose a late payment charge on any disputed amount.
- The amounts payable under this purchase order are exclusive of VAT, which shall be payable by the Buyer unless the Buyer presents proof that it is not required to pay such VAT.
- Buyer shall not be responsible for paying travelling and/or subsistence expenses which are incurred by Seller in providing the Deliverables unless agreed in writing by an authorized representative (s) of Buyer.
- 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 defects, claims, encumbrances or liens, and are suitable for the purpose intended by Buyer. Seller warrants that Deliverables that are services shall be performed in a highly professional and workmanlike manner. 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 10 and Section 11 (Inspection) in the same manner and to the same extent as Deliverables originally delivered under this purchase order. Seller's warranties shall not be deemed to be exclusive of any other remedies available to Buyer at law, including remedies available upon termination of this purchase order.
- Buyer shall be entitled to inspect the Deliverables before accepting them. Deliverables shall be deemed accepted when an authorized representative(s) of the Buyer has issued a statement in writing to the Seller stating that the Deliverables are accepted.
- With the exception of software not specifically developed for Buyer under this purchase order, all Deliverables, including all intellectual property rights in the Deliverables, shall be the exclusive property of the Buyer unless the parties agree otherwise in a written agreement signed by duly authorized representatives of both parties.
- Seller shall at its expense indemnify, defend and hold harmless, Buyer and its end users, from any losses, damages or liability (including 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 property rights, with respect to any of the Deliverables.
- All technical, financial or business information disclosed by a party to the other under this 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 this purchase order, and is clearly marked as "confidential" shall be deemed 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 except as set forth in this section:
- as may be required by law,
- 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) in connection with the performance of this purchase order. Confidential information shall not include information that:
- is or becomes in the public domain other than by a breach of this purchase order;
- is or has become publicly available without restriction through no fault of the receiving party;
- has been received without restriction from a third party lawfully in possession of such information;
- was independently developed without use or reference to the other party's Confidential Information; or
- 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.
In the event that Buyer has approved Seller's use of a subcontractor, Seller may disclose such Confidential Information that is necessary for the subcontractor to know in order to perform its duties under this purchase order. However, Seller shall remain fully responsible for any breach of the confidentiality obligations in this section with regard to its subcontractors.
- Seller's liability for damages under this purchase order shall be limited on a calendar year basis to the greater of 1.000.000 Euro (one million Euro) or 150% (one hundred and fifty percent) of the charges payable by the Buyer to Supplier during the calendar year in question. The above limitations shall not apply to sections 13, 14, 16, 23 and 25 nor shall they apply where Seller has acted with gross negligence or willful misconduct.
Buyer's total liability for damages under this purchase order shall be limited to direct damages in an amount equivalent to the agreed charges payable under this purchase order. Under no circumstances shall Buyer be liable for any indirect damages such as loss of profit, loss of production or loss of income or any other indirect damages or losses, including Seller's liability to compensate a third party. The above limitations shall not apply where Buyer has acted with gross negligence or willful misconduct.
- In the event that the Deliverables have a defect which causes damage to persons or property (other than the Deliverables), Seller agrees to indemnify, defend and hold harmless Buyer against any such claims and/or damages.
- Deliverables provided under this agreement may be subject to U.S., Dutch 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. Further Seller shall conduct export compliance reviews and screening in relation to all Seller personnel involved in this agreement, 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. The Supplier shall keep internal written dated records of these individual checks being made, which will be available to Unisys upon request.
- This purchase order may be terminated by either party if the other party:
- is in material breach of the terms and conditions stated herein and has failed to remedy the breach within 20 days of the notice from the other party identifying the breach and requesting it to be remedied.
- becomes insolvent or goes bankrupt or suspends its payments or open negotiations about a deed of arrangement, the financial circumstances of the party are such that the other party may reasonably assume that the party will be unable to meet its obligations under this purchase order.
- Whenever an 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 ten (10) business days, the Buyer upon written notice to Seller may terminate this purchase order without liability to the Seller other than to pay for the Deliverables delivered up until the time the force majeure event occurred.
- 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.
- 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.
- Seller agrees at its expense to indemnify, defend, and hold harmless Buyer and its 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 adequate amounts of insurance with a reputable insurance company for all operations necessary and incidental to the performance of this purchase order.
- 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.
- Unless the parties have agreed otherwise in a written agreement signed by duly authorized representatives of both parties, the following shall apply in the event that any personal data is to be handled by the Seller as part of the Deliverables. Buyer shall be considered the controller of personal data and the Seller shall be considered the personal data assistant. The Seller shall strictly comply with the Dutch Privacy Act (Wet bescherming persoonsgegevens Wbp) and Buyer's instructions regarding the handling of any personal data.
- 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.
- Any failure or delay by either party in exercising any right or remedy will not constitute a waiver.
- No alteration, modification or amendment of any of the provisions in this purchase order shall be binding unless in writing and signed by an authorized representative(s) of Buyer. If any provision of this purchase order is held to be illegal, invalid or unenforceable, all other provisions shall remain in full force and effect.
- 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.
- Seller represents and warrants that with respect to electrical and electronic equipment provided by Seller pursuant to this Purchase Order for importation or delivery after August 13, 2005 into a Member State of the European Union, Supplier 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 Unisys, Unisys 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 this Purchase Order 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 Unisys or Unisys customer in the event that such Seller equipment is being replaced by similar Supplier equipment.
- 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.
- This purchase order shall be governed by the substantive laws of the Netherlands and disputes shall be referred to the Amsterdam District Court.
- Ethical Conduct. Contractor 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 Agreement