1. Applicability. These Purchase Order Terms and Conditions, Addendums A and B (these “Terms”) and the Purchase Order (with any and all appendices, and/or exhibits attached hereto or otherwise issued in connection herewith, collectively the “Purchase Order”) by and between by ACS-Affiliated Construction Services, Inc. and any of its affiliates (“ACS”) and the Supplier, as defined in the Purchase Order, (ACS and Supplier collectively the “Parties” each a “Party”), for the Deliverables constitute the entire agreement between ACS and Supplier and supersede and replace all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral between the Parties. If any discrepancy, difference or conflict exists between the various provisions of the Purchase Order and these Terms, the Purchase Order shall govern. The Parties agree that these Terms are to prevail over any of Supplier’s terms and conditions of sale regardless of whether or when Supplier has submitted its quotation or such terms and/or the Supplier’s terms or conditions state that Supplier’s terms and conditions are to prevail. Fulfillment of ACS’s order does not constitute acceptance of any of Supplier’s terms and conditions and does not serve to modify or amend these Terms.
2. Amendment, Modification and Cancellation. A “Change” is a modification of the Purchase Order, including the products, specifications, or timeline schedule set forth therein. No Change shall be binding or effective unless and until it has been approved in writing by ACS (a “Change Order”). Supplier acknowledges that a Change Order may or may not entitle Supplier to an adjustment in Supplier’s compensation or the performance deadlines under the Purchase Order. Any claim for equitable adjustment by Supplier to cost, Delivery Date, or timeline must be made within twenty-one (21) calendar days after ACS delivers the written acceptance of the Change, and if not made within such time period shall be deemed waived. If Supplier disputes a Change Order, they must continue to deliver per the Purchase Order and these Terms. Any dispute will be addressed through the claims process in Section 13. ACS may for any reason and at any time, at its option, cancel any unshipped Deliverables as an adjustment to price and timeline with a Change Order.
3. Acceptance. As a condition precedent to payment for the Deliverables by ACS to Supplier, ACS shall accept those Deliverables (in whole or in part thereof) as set forth in the Purchase Order. For purposes of these Terms, “acceptance” means the point at which ACS accepts or is deemed to accept the Deliverables in accordance with the terms set forth in the Purchase Order. Prior to acceptance, title to the Deliverables remains with Supplier; all risks of damage, injury, or loss thereto, or partial or complete destruction thereof, will be borne and assumed solely by Supplier.
4. Price. Unless otherwise specified in the Purchase Order, or a Change Order, prices or fees for conforming Deliverables shall include any applicable transportation charges, insurance costs, shipping and handling fees, all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority, applicable licenses, permits, or inspections, and increases in costs for materials or labor. These Terms will be valid and enforceable even if the price or manner in which the price is to be determined is not expressly set forth in the Purchase Order or Change Order. No charges of any kind not stated on the Purchase Order shall be allowed unless specifically agreed to in advance by ACS in writing.
5. Payment Terms. ACS will pay Supplier undisputed amounts within thirty (30) days in accordance with the payment terms set forth in the Purchase Order with the receipt of a properly prepared invoice, W-9, and transfer of any applicable licenses to ACS and client. A properly prepared invoice must include the Purchase Order’s number Supplier’s certification of conformance of the Deliverables to the requirements and specifications, and a lien waiver. Unless otherwise specified in the Purchase Order, payment will be in the currency of the country in which the ACS entity or affiliate identified on the Purchase Order is located, and if the price set forth in the Purchase Order is not in the local currency, then ACS will determine the local currency equivalent of the price as of the date of the payment. ACS may, at its sole discretion, at any time, set-off any amounts Supplier owes ACS against any amounts ACS owes to Supplier or any of its affiliated companies.
6. Indemnification and Insurance. To the fullest extent permitted by law, Supplier shall indemnify, defend, protect and hold harmless ACS, client, their officers, directors, shareholders, representatives, agents, consultants, employees, affiliates, subsidiaries, and their respective successors and assigns (each an “Indemnitee” and collectively, the “Indemnitees”) from and against all claims, losses, liabilities, damages, lawsuits, actions, proceedings, arbitrations, taxes, penalties, interest, or associated legal expenses and other costs incurred by Indemnitees (including reasonable attorneys’ fees and costs of suit) (“Indemnified Claims”) incurred, arising out of, or in connection with Supplier’s, including Supplier’s subcontractors, employees and agents: (i) performance of its obligations under the Purchase Order, including any negligent act or omission of Supplier in performance of its work; (ii) infringement of any patent, trademark, copyright, mask work, trade secret, any unfair competition right or any representation, warranty, obligation, or covenant of the Purchase Order. Such Indemnified Claims shall include, without limitation, all direct, actual, general, special and consequential damages. This Section shall survive termination, cancellation, or expiration of the Purchase Order.
Supplier shall maintain adequate insurance in any and all forms necessary to protect both Supplier and Indemnitees against all liabilities, losses, damages, claims, settlements, expenses, and legal fees arising out of or resulting from performance of the Purchase Order. Except for Workers’ Compensation and Professional Liability, ACS and client shall be included as an Additional Insured and shall be primary and non-contributory over any other insurance available to any Additional Insured. Except where prohibited by law, Supplier will require its insurer to waive all rights of subrogation against ACS and the client and their insurers. A certificate of insurance will be provided upon request of ACS. Nothing contained herein shall abridge, diminish or affect Supplier’s responsibility for the consequences of any accidents, occurrences, damages, losses, and associated costs arising out of or resulting from performance of the Purchase Order. Nothing in this Section will limit any other remedy of ACS.
7. Compliance with Law. Supplier shall comply with, and shall cause each of its employees, agents and subcontractors to comply with, all applicable federal, state, local, and foreign laws, regulations, rules, codes, orders, standards and ordinances, including the U.S. Foreign Corrupt Practices Act, as amended, and anti- bribery and anti-discrimination laws and regulations during and in connection with the fulfillment of the Purchase Order. If the client or end user is the United States Government, Supplier and its subcontractors shall also comply with the Equal Employment Opportunity Clause required under Executive Order 11246, the affirmative action commitment for disabled veterans and veterans of the Vietnam era, set forth in 41 CFR 60-250.5, the affirmative action commitment for disabled veterans and other protected veterans, set forth in 41 CFR 60-300.5, the affirmative action clause for disabled workers, set forth in 41 CFR 60-741.5, and the related regulations of the Secretary of Labor, 41 CFR Chapter 60, are incorporated by reference in these Terms. Purchase Orders arising out of a contract with the federal government or any subcontract with an entity arising out of a federal government contract must be compliant with the Federal Acquisition Regulations (the “FAR”), codified at 48 C.F.R. Chapter 1, Subchapters A-H. Supplier shall also comply with all applicable U.S. export control laws and economic sanctions laws and regulations, specifically including, but not limited to, the International Traffic in Arms Regulations (“ITAR”), 22 C.F.R. 120 et seq.; the Export Administration Regulations, 15 C.F.R. 730-774; and the Foreign Assets Control Regulations, 31 C.F.R. 500-598. Without limiting the foregoing, Supplier shall not transfer any export controlled item, technical data, technology, or Service, including transfers to foreign persons employed by or associated with, or under contract to Supplier or Supplier’s lower tier suppliers, unless authorized in advance by an export license as required. By accepting these Terms, Supplier certifies that it complies with the authorities cited above and that it does not maintain segregated facilities or permit its employees to perform services at locations where segregated facilities are maintained, as required by 41 CFR 60-1.8, if applicable. Supplier will also abide by 29 CFR Part 471, Appendix A to Subpart A and the Immigration Reform and Control Act of 1996 8
U.S.C. 1324a).
Supplier shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Purchase Order and these Terms. Supplier shall comply with all export and import laws of all countries involved in the sale of the Deliverables under the Purchase Order and these Terms. Supplier assumes all responsibility for shipments of Deliverables requiring any government import clearance. ACS may terminate the Purchase Order if any governmental authority imposes antidumping or countervailing duties or any other penalties on the Deliverables. If Supplier or its employees, contractors or agents perform any services contrary to any of the Laws, Supplier shall bear all the losses, costs, damages, expenses and liabilities arising therefrom.
8. Limitation of Liability. To the extent permitted by local law, in no event will ACS or its affiliates be liable to Supplier for any lost revenues, lost profits, direct, indirect, consequential, special or punitive damages. In no event will ACS’s liability to Supplier exceed the total amount of fees to be paid by ACS pursuant to the Purchase Order.
9. Waiver. No waiver by ACS of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by a designated representative of ACS. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
10. Force Majeure. ACS may delay delivery, performance, or acceptance of Deliverables ordered hereunder in the event of causes beyond its control and ACS shall not be liable or responsible to Supplier, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of ACS including,
other rights; (iii) defect in the design, manufacture, or material of the goods; (iv) failure to deliver the Deliverables on a timely basis; and (v) misrepresentation or breach of any without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities, terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage. Supplier shall hold such Deliverables or refrain from furnishing such services at the direction of ACS and Supplier shall deliver the Deliverables when the cause effecting the delay is eliminated. ACS will only be responsible for Supplier’s direct additional costs incurred by holding the Deliverables or delaying performance of services at ACS’s request.
11. Assignment and Beneficiaries. ACS may assign its rights and delegate its obligations at any time. Supplier shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of ACS. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Supplier of any of its obligations under these Terms. These Terms are for the sole benefit of the Supplier hereto and its respective successors and assigns as permitted by ACS and nothing herein, express or implied, is intended to or shall confer upon any other person, entity or other third-party any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
12. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. Supplier hereby waives for itself and for all such personnel any and all claims to salary or other benefits of any kind to which it or they might be entitled if an employee of ACS. Supplier is responsible for any and all errors, omissions, or deviations from the warranty attributable to Supplier, anyone hired by Supplier and anyone hired by them. Supplier shall include in all subcontracts executed by Supplier for purposes related to the Purchase Order terms and conditions which bind each entity to Supplier and ACS to the same extent Supplier is bound to ACS by the Purchase Order. Supplier will promptly pay all subcontractors, vendors, suppliers and other third parties furnishing to Supplier any services, labor or materials related to the Purchase Order.
13. Governing Law, Waiver of Jury Trial. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule (whether of the State of Wisconsin or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Wisconsin. If the dispute cannot be resolved at the project level, senior executives from ACS and Supplier shall, upon the request of either Party, meet as soon as conveniently possible, but in no case later than thirty (30) days after such a request is made, to attempt to resolve such dispute. Prior to any meetings between the senior executives, the Parties will exchange relevant information that will assist in resolving the dispute. If the dispute is not resolved at the project or executive level, then the dispute shall be submitted to non-binding mediation, which shall be conducted by an impartial third-party mediator agreed to by both Parties, or failing said agreement, the mediator will be designated by the American Arbitration Association (AAA) pursuant to the Construction Industry Mediation Rules. Any legal suit, action or proceeding arising out of or relating to the Purchase Order shall be instituted in the federal courts of the United States of America for the Western District of Wisconsin or the courts of the State of Wisconsin in Dane County, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and hereby expressly waive any objection they have or may have as to venue of any such courts. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS NOTE IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY.
14. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses, or email as set forth in the Purchase Order and directed to the attention of the individual identified on the Purchase Order. Notice will be deemed given: (i) on delivery, when delivered in person or by courier during a business day, otherwise on the next business day after delivery; (ii) the same day, when sent by email during a business day, otherwise on the next business day after transmission or sending, provided that the sender has proof that the email has been sent to a proper email address, or (iii) five (5) business days after deposit in the mail to be sent by certified mail, return receipt requested; and if the party giving the Notice has complied with the requirements of this Section.
15. Severability. If any of these Terms are invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other of these Terms or invalidate or render unenforceable such Terms in any other jurisdiction.
16. Survival. These Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Purchase Order including, but not limited to, the following provisions: Insurance and Indemnification, Warranty, Compliance with Laws, Governing Law, Submission to Jurisdiction and Survival.
17. Termination. (a) Termination for Convenience. In addition to any other rights of ACS to terminate the Purchase Order, ACS may, in its sole discretion, upon thirty (30) days’ written notice to Supplier, terminate the Purchase Order for convenience or any other reason, in whole or in part at any time.
(b) Termination for Cause. ACS may terminate the Purchase Order immediately, upon written notice to Supplier, in whole or in part, for default occasioned by Supplier’s breach or threatened breach of any terms of the Purchase Order. Supplier will be liable for all losses caused by or resulting from its threatened breach, breach or default, including, without limitation, special, incidental or consequential damages.
(c) Termination for Insolvency Event. ACS may terminate the Purchase Order immediately, upon written notice to Supplier, and without
liability to Supplier: (i) in the event of the insolvency, bankruptcy, reorganization, receivership or liquidation by or against Supplier; (ii) in the event Supplier makes an assignment for the benefit of its creditors or ceases to carry on business in the ordinary course; or (iii) if a receiver is appointed in respect of Supplier or all or part of its property (each, an “Insolvency Event”). In the event of such termination, Supplier will be liable for all losses suffered by ACS, including, without limitation, special, incidental or consequential damages. In the event that ACS does not terminate upon the occurrence of an Insolvency Event, ACS may make such equitable adjustments in the price and/or delivery requirements under the Purchase Order as ACS deems appropriate to address the change in circumstances.
(d) Any termination under this Section will be without liability to ACS, except for Deliverables delivered by Supplier and accepted by ACS and/or services performed before the effective date of such termination plus reimbursement of the reasonable out-of-pocket costs that Supplier has actually incurred as of the effective date of such termination in the performance of the Purchase Order.
17. Intellectual Property. Supplier represents, warrants and agrees that (i) neither the products or any services (including any materials, equipment, software or firmware), nor the use thereof, will in any way infringe or contribute to the infringement of any patent, copyright, trademark, service mark, trade dress, trade secret or other proprietary right in the U.S. or elsewhere, and no claim, action or suit alleging any such infringement or contribution to infringement is pending or threatened against Supplier, its employees, agents or subcontractors; (ii) Supplier has full power and authority to grant all of the intellectual property, proprietary and other rights; and (iii) no royalties, fees or other costs are payable to Supplier or any third party for any such rights. If ACS’s or client’s use of any of the products or services, rights granted under the Purchase Order (the “granted rights”), is enjoined in connection with any claim, action or suit alleging that such products, services, or granted rights infringe or contribute to the infringement of any patent, copyright, trademark, service mark, trade dress, trade secret or other proprietary right in the
U.S. or elsewhere, then Supplier shall, at its sole cost and expense, either (a) procure for ACS the perpetual right to continue using the affected products, services and granted rights without restriction and without any obligation on the part of ACS to make any royalty or other payments; (b) replace the affected products, services and/or granted rights with non-infringing products, services and rights that do not adversely affect ACS’s use of the products, services and/or granted rights; or (c) modify the affected products, services and/or granted rights in a manner that does not adversely affect ACS’s right to use the products, services, and/or granted rights as contemplated on the date of the Purchase Order so that the affected products, services and/or granted rights become non-infringing. Supplier’s obligations under this Section shall be in addition to, and shall not limit, restrict or otherwise affect in any way, the other obligations of Supplier under these Terms, applicable law or otherwise.
Addendum A – Goods
If this Order is for Goods, the following Sections are also included in these Terms.
A.1. Quantity. If Supplier delivers more or less than the quantity of goods or products (“Goods”) ordered, Purchaser may reject all or any excess Goods. Any such rejected Goods shall be returned to Supplier at Supplier’s sole risk and expense. If ACS does not reject such Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the price for such Goods shall be adjusted on a pro-rata basis.
A.2. Delivery. Time is of the essence with respect to performance of the Purchase Order, including delivery of drawings, ordering of supplies and materials, and/or construction and installation, and conforming products and services under the Purchase Order. Supplier shall provide on-time delivery of the Goods specified in the Purchase Order based upon the delivery date (the “Delivery Date”) and other Schedule Milestones set forth in the Purchase Order. Supplier shall be solely liable for any delays, loss, or damage. ACS shall not be liable for any delays, loss including and not limited to any increase in price of materials and labor that increase due to failure of Supplier to meet Schedule Milestones. Supplier shall be responsible for any costs to the extent caused by Supplier’s or its employees’, agents’, suppliers, or subcontractors’ delays. If Supplier’s delivery of submittals, other information, materials, products or services will not meet the required Delivery Date(s) or Schedule Milestones for any reason, Supplier shall provide ACS with written notice of such delay and ship the submittals, other information, materials, or products via the most expeditious available method of transportation, and any additional cost resulting from such method of transportation shall be borne by Supplier. Unless ACS expressly instructs otherwise, Supplier shall deliver the Goods to ACS’s facility at the address set forth in the Purchase Order (the “Delivery Point”) using Supplier’s standard methods for packaging and shipping such Goods in the absence of any specifications that ACS may provide. Without limiting the forgoing, Supplier shall observe requirements of any local laws and regulations relating to hazardous work, including, without limitation, with respect to its accompanying information, packing, labeling, reporting, carriage and disposal. Supplier shall immediately notify ACS of any change (including location) in its or its subcontractors supply chain.
ACS’s only obligation is to pay for accepted Goods prior to any cancellation as described in Section 2. To the extent that the Purchase Order covers Goods manufactured or fabricated to ACS’s specifications, Supplier shall immediately cease all performance hereunder upon receipt of notice of cancellation, and, if Supplier is not in default, ACS shall reimburse Supplier for the actual, direct cost to Supplier of such Goods which have, at the time of such cancellation, been wholly or partially manufactured. Upon payment, title of such Goods will pass to ACS. Unless ACS has otherwise instructed Supplier, Supplier agrees that it will not manufacture Goods in reserve in an amount greater than the number of manufactured Goods that it has shipped to ACS at any one time.
A.3. Shipping Terms and Risk of Loss. Supplier assumes responsibility for all shipping and delivery charges including, without limitation, customs, duties, costs, taxes and insurance. Supplier assumes all risk of loss or damage to all Goods ordered and all work in progress, materials, and other items related to the Purchase Order until the same are finally accepted by ACS as set forth in Section 5. Supplier assumes all risk of loss or damage relating to any Goods, work in progress, materials and other items rejected by ACS until the same are received by Supplier or accepted by ACS as set forth in Sections 5 and A.4. Any increase in the transportation, shipping, and/or delivery costs than specified in the Purchase Order shall be paid by Supplier unless the necessity of such rerouting or expedited handling has been caused by ACS and accepted in writing by ACS in advance. Supplier shall request any additional compensation for an increase in costs by submitting a Change Order to ACS.
A.4. Inspection and Rejection. ACS retains the right to reject any non- conforming Goods and shall not be obligated to accept or pay for any non- conforming Goods. Payment for the Goods provided under the Purchase Order shall not constitute acceptance of the Goods. ACS may inspect and test such Goods and reject any or all items that are, in ACS’s sole judgment, non-conforming. Goods rejected or supplied in excess of quantities ordered may be returned to Supplier at Supplier’s expense. Failure of ACS to inspect and/or test the Goods shall not be deemed acceptance by ACS. At ACS’s sole option, ACS may: (i) return the non- conforming Goods to Supplier for a refund or credit; (ii) require Supplier to replace the non-conforming Goods; or (iii) repair the non-conforming Goods so that they meet requirements and specifications. As an alternative to (i) through (iii) ACS, at its sole discretion, may accept the non-conforming Goods conditioned on the Supplier providing a refund or credit in an amount ACS reasonably determines to represent the diminished value of the non-conforming Goods Supplier shall bear all costs, damages, delivery charges, expenses and risk of loss for the replacement and/or repair of the Goods until ACS accepts such repairs and/or replacement of the Goods.
A.5. Warranty. In addition to Supplier’s standard warranty, regardless of Supplier’s standard warranty exclusions relating to the Goods, Supplier warrants that the Goods to be delivered pursuant to the Purchase Order (i) are of merchantable quality and free from defects in material or workmanship; (ii) shall conform to all specifications, drawings, samples or other descriptions furnished to and approved by the Parties; (iii) comply with applicable international, federal, state and local laws, rules and regulations (including, without limitation, those concerning health, safety, and environmental standards) which bear upon Supplier’s performance; (iv) shall be new and not refurbished or reconditioned, unless expressly agreed to in writing by ACS; and (v) are not restricted in any way by patents, copyrights, mask work, trademark, trade secrets, or intellectual property, proprietary or contractual right of any third party.
Supplier also warrants that ACS shall have good and marketable title to all Goods (including components thereof) purchased pursuant to transactions contemplated under the Purchase Order, free of all liens and encumbrances and that no licenses are required for ACS to use such Goods. The terms of this Section shall not be waived by reason of acceptance of the Goods or payment by ACS. ACS may transfer or assign the forgoing warranty terms of this Section. Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are also to be covered by the warranty in this Section. ACS shall not be liable for the cost of labor or transportation charges in connection with the replacement or repair of defective parts and the removal and/or remounting of the parts repaired or replaced unless specifically authorized in writing by ACS. All Goods returned to Supplier must be shipped freight prepaid by Supplier. Forms authorizing such returns of inspection must accompany all returns.
In the event Supplier does not comply with the foregoing warranties, ACS is entitled to all remedies set forth in these Terms and as permitted by law.
Addendum B – Services
If this Order is for Services, the following Sections are also included in these Terms.
B.1. Performance of Services. (a) Supplier shall provide Services to ACS promptly or as otherwise described and in accordance with the Schedule Milestones set forth on the Purchase Order and in accordance with these Terms. Supplier acknowledges that time is of the essence with respect to Supplier’s obligations hereunder and the timely performance of Services, including all performance dates, timetables, project milestones and other requirements in these Terms.
(b) Prior to or at the time of commencing the performance of Services, Supplier shall provide ACS with name and contact details of a project manager or other contact person having authority and responsibility to validly receive declarations and who facilitates the entire communication within the scope of the existing contractual relationships.
(c) The price for the Services to be performed set forth in the Purchase Order is fixed. Any overrun or underrun, including any caused by an increase in the cost of materials, of the agreed fixed price shall remain the sole responsibility of the Supplier.
(d) Compensation for Services shall only be paid by ACS upon as set forth in the Purchase Order, unless otherwise agreed in writing. Payment of the agreed compensation is deemed to cover all Services/deliverables provided by the Supplier, including any transferred rights. No claim for compensation beyond this scope will be considered or paid by ACS.
B.2. Supplier’s Obligations Regarding Services. Supplier shall:
(a) Before the date on which Services are to start, obtain, and at all times during the period of these Terms, maintain, all necessary licenses, permits and consents;
(b) Comply with all rules, regulations and policies of ACS, including security procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by ACS to certain areas of its premises or systems for security reasons, and general health and safety practices and procedures;
(c) Ensure that Services are provided during ACS’s normal hours of business, unless otherwise set forth on the face of the Purchase Order, and be provided with minimal disruption to ACS’s operations;
(d) Ensure that all services are performed and deliverables delivered to ACS strictly in accordance with the terms of the Purchase Order and these Terms on or before the delivery deadline specified in the individual Purchase Order. Supplier acknowledges and agrees that time is of the essence and that the delivery deadlines must be adhered to, regardless of circumstances;
(e) Maintain complete and accurate records relating to the provision of Services under the Purchase Order, including records of the time spent and materials used by Supplier in providing Services in such form as ACS shall provide or approve. During the term of the Purchase Order and for a period of two (2) years thereafter, upon ACS’s written request, Supplier shall allow ACS to inspect and make copies of such records and interview Supplier’s personnel in connection with the provision of Services;
(f) Obtain ACS’s written consent, which may be given or withheld in ACS’s sole discretion, prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Supplier, other than Supplier’s employees, to provide any Services to ACS (each such approved subcontractor or other third party, a “Permitted Subcontractor”). ACS’s approval shall not relieve Supplier of its obligations under the Purchase Order and Terms, and Supplier shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Supplier’s own employees. Nothing contained in these Terms or Purchase Order shall create any contractual relationship between Purchaser and any Supplier subcontractor or supplier;
(g) Require each Permitted Subcontractor to be bound in writing by the confidentiality provisions of Terms, and, upon ACS’s written request, to enter into a non-disclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to ACS;
(h) Ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Supplier, are properly licensed, certified or accredited as required by applicable law, are suitably skilled, experienced and qualified to perform Services, and have undergone proper safety instruction;
(i) Ensure that all of its equipment used in the provision of Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and any standards specified by ACS;
(j) Keep and maintain any ACS equipment in its possession in good working order and shall not dispose of or use such equipment other than in accordance with ACS’s written instructions or authorization;
(k) Participate in regular meetings with ACS at such time as requested by ACS from time to time;
(l) If ACS’s tooling and equipment is used by Supplier, Supplier shall pay ACS an agreed upon usage fee (which may be satisfied through a reduction of the purchase price); and
(m) Be responsible for all cleanup costs and costs of restoring ACS’s premises to its original condition.
B.4. Personnel. In ACS’s sole discretion, ACS may require Supplier to remove any persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of Supplier performing Services at ACS’s premises and have Supplier replace such individuals with individuals acceptable to ACS.
B.5. Compliance with Health & Safety Requirements. Supplier agrees that with respect to each Purchase Order pursuant to which services will be performed, it will be solely responsible for ensuring the safety of its employees and Permitted Subcontractors. Supplier will ensure that employees and Permitted Subcontractors present on obtain proper health and safety training prior to commencing any portion of the services and will comply with any and all health and safety and standards for the site. Supplier will include a similar clause in all subcontractors hired by it which will be present. ACS may stop all or any services in the event of a potential safety issue at any time.
B.6. Warranty. Supplier warrants to ACS that it shall perform Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement. All deliverables shall be (a) free from any defects in workmanship, material and design; (b) conform to applicable specifications, drawings, designs, samples and other requirements specified by ACS on the face of the Purchase Order and in any technical documents incorporated by reference therein; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; and (f) not infringe or misappropriate any third party’s Intellectual Property Rights. The warranties set forth in this Section shall continue for a period of thirty (30) months following Supplier’s completion of the Services and ACS’s receipt of the final deliverable and are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of ACS’s discovery of the noncompliance of Services with the foregoing warranties. If ACS gives Supplier notice of noncompliance pursuant to this Section, Supplier shall, at its own cost and expense, promptly repair or re-perform the applicable Services and pay for all related expenses.
END OF TERMS AND CONDITIONS
