Software Deals Purchase Order Terms and Conditions
Revision Date: March 1, 2017
All Software Deals, LLC purchase orders, and purchase agreements are subject to the following terms and conditions.
Acceptance: The purchase order includes any verbal or written agreement to purchase a product or service. Together with the terms herein (the "Purchase Order") constitutes Buyer's offer to Seller. It shall become a binding contract upon the Seller's terms and conditions upon acceptance. Any other terms and conditions proposed by Seller in acknowledging the Buyer's offer that seems different from or in addition to the requirements outlined in the Purchase Order shall not be binding upon Buyer. They shall be void and have no bearing or effect, except to the extent expressly accepted in writing by Buyer's authorized procurement representative. Together with any attachments, this Purchase Order constitutes the entire agreement between the parties. No waiver, modification, or addition to the terms of the Purchase Order shall be valid unless in writing and signed by the parties.
Payment and Prices. Customer/buyer shall not be billed at prices higher than those displayed on the Purchase Order. Unless otherwise specified, the price includes all charges for packing, hauling, storage, and transportation to the point of delivery. The price stated consists of all taxes which Seller is needed to pay by law. Such taxes shall be individually displayed in the invoice and produced by the Buyer (unless an exemption is available). Seller also agrees that any price drop made concerning the items covered by the Purchase Order after its placement but before payment shall apply to the Purchase Order.
A "correctly presented" invoice includes the Purchase Order Number sent with the billing address. Seller agrees that prices quoted to or paid by Buyer shall not exceed current fees charged to any other customer. It is for such deliverables which are the same or substantially similar to and in the same or substantially identical 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).
Delivery: The Deliverables must be shipped by the date requested but not be sent later than one week in advance of the time(s) specified herein, without prior written approval from the Buyer. Herein, when more than one shipment is necessary against any Purchase Order- indicate "Final Shipping" on the shipping invoice accompanying the last shipment. The Seller shall not ship spare or excess quantities without the Buyer's prior consent. Herein, except as otherwise provided herein, Buyer shall not be obligated to accept untimely, extra, or under shipments. At Buyer's choice, such shipments whole or part may be returned to Seller or held for disposition at Seller's expense.
Changes: The changes are made concerning the Buyer making changes in drawings, specifications, quantities, delivery timetables, or procedures of shipment or packaging on any products. Suppose such modifications result in an addition or drop in cost. In such cases, an equal price and delivery adjustment may be made. Also, the Buyer has an option to terminate the Purchase Order in case the agreement on an adjustment fails to reach. The Seller must assert claims for adjustment within ten days of the change order.
Warranties. The Seller guarantees that the product deliverables will conform to applicable instructions and that samples will be of good material and quality. It will be free from defects, and fit for the intended use. These warranties shall be in addition to all other warranties that may be, implied, express, or statutory. Any payment for an inspection of receipt or services shall not comprise a waiver of any violation of warranty. Seller's warranties shall run to Buyer, its affiliate partner, customers, subsidiaries, or users, and they shall not be deemed exclusive of any other resolution. Buyer's inspection, permission, approval, usage, or payment for all or any part of the Deliverables shall in no way affect its warranty rights.
Inspection and Tests. All goods ordered will be subject to review and needs to be tested by Buyer to the degree practicable at places and times, including thereof the period of manufacture that are in any event before acceptance. Sometimes goods will be subject to final inspection and approval by the buyer in a certain timeframe. It is expressly agreed that assessments and payments before delivery will not constitute conclusive approval. If any of the goods delivered, for any reasons, fails to meet the specifications, or are rejected by the manufacturer, or otherwise do not conform to the Purchase Order requirements, then the Buyer shall have complete rights to reject such goods.
Use of Information. Seller agrees that all details furnished or disclosed in connection with the placing or filling are disclosed as a part concerning the Purchase Order. Unless otherwise agreed to by Buyer in writing, the information shall not be treated as confidential. The Seller shall assert no claims because of the usage or disclosure of such information by its assigns or its customers.
Advertisements. Henceforth the Seller shall not in any way promote or publicize the fact that it has furnished, or contracted to provide Buyer, the goods or services without the prior written consent of the Buyer. Seller shall not disclose any facts in relation with the Purchase Order to any party except as may be provided otherwise.
Tooling. All tooling and articles required for the performance shall be maintained in good condition and replaced when necessary unless otherwise specified in the Purchase Order. It gets done at Seller's expense, be provided by Buyer, or returned upon demand.
Default - Cancellation. Buyer reserves the right, by written notice of default, to cancel the Purchase Order without liability to Buyer, in the event of the happening of any of the following: insolvency of Seller, the filing of a voluntary petition in bankruptcy by Seller, the filing of an involuntary petition to have Seller declared bankrupt, the appointment of a Receiver or Trustee for Seller, or the execution by Seller of an assignment for the benefit of creditors. If Seller fails to perform as specified herein, or if Seller breaches any of the terms hereof, Buyer reserves the right, without any liability to Buyer, upon giving Seller written notice, to (i) cancel the Purchase Order in whole or in part, by written notice to Seller and Seller shall be liable to Buyer for all damages, losses, and liability incurred by Buyer directly or indirectly resulting from Seller's breach, or (ii) obtain the goods ordered herein from another source with any excess cost resulting from there chargeable to Seller if such deficiencies are not remedied. The remedies herein provided shall be cumulative in addition to any other remedies provided at law or in equity.
Force Majeure. Neither party shall be held accountable for defaults or delays produced by the Acts of God, public enemy, acts of Government or any Governmental agency, or from strikes, fires, floods, accidents. Such other unforeseeable causes are outside the control and not due to negligence. Henceforth each party shall notify the other in paper or writing of the cause of such delay.
Compliance with Laws
General: Seller shall comply fully with all applicable federal, state, and local laws in the performance of this Agreement, including, but not limited to, all applicable employment, tax, export control, and environmental legislation.
Equal Employment Opportunity: Software Deals is a government contractor and is subject to the requirements of Executive Order 11246, the Rehabilitation Assistance Act. According to these requirements, the Equal Opportunity Clauses found in 41 Code of Federal Regulations sections 60-1.4(a) (1-7), 60-250.4(a-m), and 60-741.5 (a) (1-6) are incorporated herein by reference as though set forth at length and made a specific part of this Agreement. If applicable, Seller will comply with the following Federal
- 52.222-26 "Equal Opportunity"
- 52.222-35 "Affirmative Action for Special Disabled and Vietnam Veterans"
- 52.222-36 "Affirmative Action for Handicapped Workers"
Customs: Upon Software Deals request, Seller will promptly provide Software Deals with a statement of origin for all Deliverables and United States Customs documentation for Deliverables wholly or partially manufactured outside of the United States.
Indemnification. Seller will defend, hold harmless and indemnify Buyer from and against any liability and expenses (including, without limitation, attorney and other professional fees and disbursements) arising from or in connection with any damages, injuries, or third party claims or demands to recover for personal and business harm, trademark or advertising injury or infringement, death, or property damage caused by or arising out of any of the Deliverables (regardless of whether such claim or demand arises under tort, negligence, contract, warranty, strict liability or other legal theories), except to the extent such injury, damage or loss results from Buyer's negligent actions, alteration or misuse.
Insurance. Suppose the Purchase Order contemplates the provision of services by Seller. In that case, Seller shall maintain and keep in force at its expense the following insurance at limits reasonably requested by Buyer: Commercial General Liability (including products and contractual liability), Commercial Automobile, Worker's Compensation, and Professional Liability. Seller shall provide a Certificate of Insurance to Buyer to verify such coverage, which shall provide at least 30 days' Notice of Cancellation to Buyer.
Intellectual Property Indemnification. Seller shall indemnify and save harmless Buyer, its successors, assigns, customers or users of its products, from and against all loss, liability and damage, cost and expense (including reasonable attorney fees), resulting from any claim that the manufacturer, use, sale or resale of any Deliverables supplied under the Purchase Order infringe any patent or patent rights, trademark, copyright or other intellectual property rights of a third party, and Seller shall when notified, defend any action or claim of such infringement at its own expense.
Assignment. The Seller may assign no rights or any obligations herein on the 'Purchase Order'; the Seller may not delegate the performance of any of its duties without Buyer's prior written consent.
Applicable Law and Jurisdiction. The laws of the concerned state shall govern the validity, interpretation, and performance of these terms and conditions to conflict of laws principles. The parties agree that any action related to this Agreement shall be in the venue of the Federal District Court or the Superior Court for the State of Texas. The parties at this moment irrevocably commit to the jurisdiction of the legal courts.
Attorneys' Fees. In the event of any dispute, the terms of this agreement retain counsel to enforce any of the provisions; or assert the terms of this agreement in defense of any suit filed against the said party. Here, each party shall be solely responsible for its attorneys' fees incurred in connection with the dispute irrespective of whether or not a lawsuit is initiated or indicted to a judgment.
Invoices and Notices. All correspondence and invoices covering the Purchase Order must be addressed to the Buyer's Purchasing Department at the address indicated on the Purchase Order. The parties agree that facsimile signatures shall be accepted as original signatures for any transactions subject to the Purchase Order. The orders may be transmitted electronically, and any document created according to the Purchase Order may be maintained in electronic document storage and retrieval system, a copy of which shall be considered an original. Neither party shall raise any objection to the authenticity of the Purchase Order or any document created hereunder, based on the use of a facsimile signature, electronic order, or the use of a copy retrieved from an electronic storage system.
Severability. In case one or more of the mentioned provisions contained in the Purchase Order shall exist illegal, invalid, or unenforceable in that respect, the validity or enforceability of the remaining provisions shall not in any way be involved or impaired thereby.
Title. Except software not explicitly devised for Buyer underneath the Purchase Order:
(i) all Deliverables shall be the sole and exclusive property of the Buyer, and where applicable, shall be considered "works made for hire" under the U.S. Copyright Act (Title 17, United States Code), 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.
Relationship of Parties. Herein, the Seller and Buyer are independent or separate contractors. Nothing in the Purchase Order shall be deemed to create a partnership, franchise, employment, joint venture, or any other relationship between them. Neither party shall hold power or authority to restrain or obligate the other party.
Limitation of Liability. In no event shall Buyer be liable for any incidental, consequential, indirect, or punitive damages, even if the Buyer knew or possessed the knowledge of the possibility of such damages. The sale, agreement to sell, or transfer of products or services to Software Deals constitutes your acknowledgment and agreement to the entire content of the terms and conditions outlined in this document.