Standard Purchase Order Terms & Conditions
Humanscale’s Standard Purchase Order Terms and Conditions
All orders by any Humanscale entity (“Humanscale”) to the supplier identified in the purchase order (the “Supplier”) are subject to these terms and conditions and any attachments and exhibits, specifications, drawings, notes, instructions and other information, whether physically attached or incorporated by reference (collectively the “Purchase Order”), and constitute the entire and exclusive agreement between Humanscale and the Supplier. Humanscale shall issue all Purchase Orders in written form. Each Purchase Order shall clearly specify the following information: (i) identify the products to be manufactured by part number; (ii) specify the number of units to be manufactured; (iii) specify the purchase price; (iv) requested delivery date; and (v) delivery point. Supplier must acknowledge all Purchase Orders within 24 hours of receipt. Non-conforming or oral purchase orders shall not be processed by Supplier.
Humanscale’s submission of the Purchase Order is conditioned on Supplier’s agreement that any terms different from or in addition to the terms of the Purchase Order, whether communicated orally or contained in any purchase order confirmation, invoice, acknowledgement, release, acceptance or other written correspondence, irrespective of the timing, shall not form a part of the Purchase Order, even if Supplier purports to condition its acceptance of the Purchase Order on Humanscale’s agreement to such different or additional terms. Supplier’s electronic acceptance, acknowledgement of the Purchase Order or commencement of performance constitutes Supplier’s acceptance of these terms and conditions. The Purchase Order does not constitute a firm offer and may be revoked at any time prior to acceptance.
Notwithstanding the foregoing, if a master agreement, manufacturing agreement or other agreement covering procurement of the products or services described in the Purchase Order exists between Supplier and Humanscale (the “Master Agreement”), the terms of such Master Agreement shall prevail over any inconsistent terms herein. These terms and conditions are subject to change at any time without notice.
Delivery Requirements: For Supplier's delivery of products, time is of the essence. In the event that Supplier is unable to meet the specific delivery requirements set forth in the Purchase Order submitted, Supplier shall notify Humanscale within 24 hours of receipt of the Purchase Order and request a delivery modification. All delivery modifications must be approved, in writing, by Humanscale prior to the commencement and fulfillment of the specific Purchase Order. If Supplier fails to deliver on time, Humanscale may purchase replacements elsewhere, and Supplier will be liable for actual and reasonable costs and damages Humanscale incurs. Supplier will promptly notify Humanscale if it is unable to comply with the delivery date specified in the Purchase Order.
Price: If the Purchase Order does not include pricing, the price for the products or services provided hereunder will be Supplier's lowest prevailing market price for such products or services. Supplier is not entitled to reimbursement of expenses incurred in connection with fulfilling the Purchase Order, except as otherwise agreed in writing by Humanscale. Humanscale may, at any time, set-off any amounts Supplier owes Humanscale against any amounts Humanscale owes to Supplier or any of its affiliated companies.
Taxes: Unless otherwise specified in the Purchase Order, the price for the products or services includes all taxes and other charges such as shipping and delivery charges, duties, customs, tariffs, imposts and government-imposed surcharges. Supplier will, at Humanscale’s request, break-out from the price all such taxes and other charges in its invoices. Supplier shall use its best efforts to assist Humanscale in all legal efforts to minimise the taxes resulting from the performance of the Purchase Order.
Terms of Payment and Acceptance: Unless otherwise mandated by local law, the terms of payment are net 60 days after the date of the bill of lading or airway bill, or after receipt of the products or services, whichever is later. Payment will not be deemed acceptance of products or services, and such products or services will be subject to inspection, test, acceptance or rejection. At Humanscale’s option, Humanscale may reject products or services that do not comply with Humanscale’s acceptance criteria for a refund, or require Supplier to repair or replace such products or re-perform such services without charge and in a timely manner. Humanscale may return non-conforming products to Supplier at Supplier's expense.
Termination: Humanscale may terminate any Purchase Order with or without cause. If Humanscale terminates without cause, Humanscale will pay Supplier for Supplier's actual and reasonable expenses for work that has been satisfactorily completed and delivered to the delivery location as of the date of termination, but in no event will such payment exceed the agreed upon prices.
Imports and Exports: Unless Humanscale specifically requests otherwise in writing, Supplier is the importer and exporter of record. Supplier will comply with all import and export laws and administrative requirements, including the payment of all associated duties, taxes and fees and all applicable laws, regulations, certifications and registrations associated with the import or export of the products including but not limited to product safety, electromagnetic compatibility, telecommunications, product take-back/recycling and environmental requirements. Upon Humanscale’s request, Supplier will promptly provide all information necessary to export and import products, including, as applicable, the Export Control Classification Numbers (ECCN) and subheadings or munitions list category number, certification and or test results relating to the products or services and any other and will notify Humanscale in writing of any changes to the information provided by Supplier to export and import products. For products that will be imported by Humanscale, Supplier will provide promptly any requisite information, documentation, certification and/or test results for Humanscale to comply with applicable import laws and administrative requirements.
Certificates of Origin: Upon request, Supplier shall promptly furnish to Humanscale all certificates of origin or domestic value-added and all other information relating to the costs and places of origin of the products or the services and the materials contained therein or used in the performance thereof, as may be required by Humanscale to comply fully with all customs, tariffs and other applicable governmental regulations. Supplier shall comply with all such regulations. Supplier shall indemnify and hold Humanscale, its subsidiaries and affiliates, their respective successors, assigns, representatives, employees and agents harmless from and against all liabilities, demands, claims, losses, costs, damages and expenses of any nature or kind (including fines and penalties) arising from or as a result of: (i) Supplier’s delay in furnishing such certificates or other information to Humanscale; (ii) any errors or omissions contained in such certificates; and (iii) any non-compliance by Supplier with such regulations.
Packaging and Shipping Requirements: Unless the Parties expressly agree otherwise in writing, Humanscale will specify the freight carrier to be used from Supplier’s facility. Supplier must ensure that product packaging conforms to good commercial practice, Humanscale’s specifications, government regulations and other applicable standards. Supplier must mark each container with necessary handling and shipping information. Supplier will be liable for material damaged as a result of improper or insufficient packing or packaging.
Title and Risk of Loss: Title to products and risk of loss remain with Supplier until the products purchased under the Purchase Order have been delivered to the delivery point specified in the Purchase Order and accepted by Humanscale, at which time title and risk of loss pass to Humanscale.
Ownership of Products and License: Unless otherwise specified in a Master Agreement or statement of work, and except as provided in this Section, Humanscale is the sole and exclusive owner of all goods, services and work product delivered pursuant to a Purchase Order and Supplier hereby irrevocably assigns and transfers to Humanscale all of its worldwide right and title to, and interest in, the goods and services, including any and all associated intellectual property rights.
Unless otherwise specified in a Master Agreement or statement of work, each party owns all right, title and interest in and to any of its preexisting materials. Supplier hereby grants Humanscale a perpetual, irrevocable, worldwide, transferable, royalty-free, nonexclusive license, with the right to sublicense and authorise the granting of sublicenses to use and reproduce Supplier’s pre-existing materials in the goods or services to the extent necessary for Humanscale to exercise and exploit its rights in the goods and services.
Confidential Information: The parties shall treat the terms, conditions and existence of the Purchase Order as confidential information. If Humanscale and Supplier have entered into a Non-Disclosure Agreement (“NDA”), such NDA covers disclosure of confidential information under the Purchase Order. If the term of the NDA expires before the expiration or termination of the Purchase Order, then the term of the NDA shall be automatically extended to match the term of the Purchase Order. Supplier shall obtain Humanscale’s written consent prior to any publication, presentation, public announcement or press release concerning its relationship as a supplier to Humanscale.
Subcontractors: Supplier will ensure that the terms of its contracts with its subsuppliers and subcontractors provide Humanscale with all of the rights specified herein.
Assignment: Supplier will not assign its rights or subcontract its duties without Humanscale’s written consent. Any unauthorised assignment is void. Supplier shall maintain records of products supplied under the Purchase Order sufficient to allow accurate traceability of the product(s) from Supplier, including source of raw materials and identifying any subsupplier or contract manufacturer of Supplier or Supplier’s manufacturing line.
Right to Audit: Humanscale may, on reasonable notice to Supplier, audit Supplier's books, ledgers, supporting records/documentation and related procedures and controls relating to any charges paid by Humanscale in connection with the Purchase Order.
Insurance: Supplier shall obtain and maintain all applicable and appropriate insurance, (including, without limitation, business, workers' compensation, auto, errors and omissions, professional and commercial general and liability insurance) in an amount consistent with Supplier’s industry practice. Each policy shall name Humanscale as a loss payee or additional insured, as appropriate. Notwithstanding the foregoing, during the Term and for a period of eight (8) years following termination of this Agreement, Supplier shall maintain product liability insurance with a reputable insurer for any and all liability (however arising) for a claim that the products are faulty or defective. Supplier shall provide a copy of the insurance policy to Humanscale upon request.
Indemnification: Supplier shall indemnify and hold Humanscale harmless against any and all liabilities as incurred by Humanscale, arising out of or in connection with any: (i) damage to property, death or personal injury which arises from any fault or defect in the materials or workmanship of the products or services delivered pursuant to the Purchase Order, whether due to an act or omission of Supplier (including its subcontractors) or (ii) any action or threatened action based upon a claim that any work product or product development services provided by Supplier pursuant to a Purchase Order infringe a third party’s intellectual property right or any other rights and any reasonable costs, claims, demands and expenses arising out of or in connection with that liability. If there is a claim of infringement of a third party’s intellectual property rights, then, in addition to defending the claim and paying any damages and attorneys’ fees, Supplier, at its own expense and option, may (a) procure for Humanscale the right to continue use of the product or (b) replace or modify the product, without loss of material functionality or performance, to make them non-infringing.
Limitation of Liability:
NOTWITHSTANDING ANYTHING ELSE IN THE PURCHASE ORDER OR OTHERWISE, HUMANSCALE WILL NOT BE LIABLE TO SUPPLIER WITH RESPECT TO THE SUBJECT MATTER OF THE PURCHASE ORDER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS IN THE AMOUNT HUMANSCALE PAID TO SUPPLIER IN THE SIX (6) MONTHS PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH LIABILITY.
TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL HUMANSCALE OR ITS AFFILIATES BE LIABLE TO SUPPLIER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS ARISING OUT OF, OR IN CONNECTION WITH, THE PURCHASE ORDER, WHETHER OR NOT HUMANSCALE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
THE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. NOTHING IN THE PURCHASE ORDER LIMITS EITHER PARTY'S LIABILITY FOR BODILY INJURY OF A PERSON, DEATH OR PHYSICAL DAMAGE TO PROPERTY OR ANY LIABILITY WHICH CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
Applicable Laws: The Purchase Order will be construed in accordance with, and all disputes will be governed by, the laws of the state of New York, without regard to its conflict of laws rules. The parties specifically waive application of the U.N. Convention on Contracts for the International Sale of Goods. Supplier irrevocably consents to the personal jurisdiction of the state and federal courts in and for New York County, New York and irrevocably waives any claim it may have that any proceedings brought in such courts have been brought in an inconvenient forum.
Compliance with Laws:
(a) Supplier represents and warrants that it will comply with all applicable local and national laws and regulations pertaining to its performance of its obligations under the Purchase Orders. In particular and without limitation, Supplier shall not act in any fashion or take any action that will render Humanscale liable for a violation of any applicable anti-bribery legislation (including without limitation, the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010), which prohibits the offering, giving or promising to offer or give or receiving, directly or indirectly, money or anything of value to any third party to assist it them or Humanscale in retaining or obtaining business or in procuring the products or services.
(b) Supplier represents that: (i) neither it nor any of its subcontractors or suppliers will either engage in or permit substandard working conditions in the supply of the products or the services under a Purchase Order; (ii) child labour or underage labour, as defined by applicable law, will not be utilised; (iii) it will not allow any form of forced or compulsory labour; (iv) workers, without fear of reprisal, intimidation or harassment, shall have the right to associate freely and join labour unions and workers’ councils or to otherwise refrain from joining such organisations as they so choose, in accordance with applicable laws; (v) workers shall be protected against any form of harassment and discrimination in any form, including but not limited to gender, age, religion, disability and political beliefs; (vi) workers shall have a safe and healthy workplace that meets or exceeds all applicable standards for occupational health and safety; (vii) workers shall be compensated with wages and benefits that comply with applicable law, including minimum wages, overtime hours and legally mandated benefits: and (viii) working hours shall comply with all applicable laws regulating hours of work.
(c) Supplier shall indemnify and hold Humanscale, its subsidiaries and affiliates, their respective successors, assigns, representatives, employees and agents harmless from and against all liabilities, claims, demands, losses, costs, damages and expenses of any kind and nature (including personal injury, property damage, consequential and special damages) arising from or as a result of Supplier’s failure to comply with this paragraph.
Additional Provisions Relating to Federal and Public Sector:
Compliance with Laws Unique to Government Contracts: Without limiting the foregoing, Supplier acknowledges that as a government contractor, Humanscale is subject to various federal laws, executive orders, and regulations regarding equal opportunity and affirmative action which may also be applicable to Supplier. Accordingly, Supplier shall, to the extent they apply, abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, colour, religion, sex, national origin, protected veteran status or disability.
To the extent applicable, Humanscale incorporates by reference 29 Code of Federal Regulations (C.F.R.) Part 471, Appendix A to Subpart A, as well as any E-Verify obligations described in FAR 52.222-54
General: The parties expressly waive any right to a jury trial regarding disputes related to any Purchase Order. Unless otherwise provided by local law without the possibility of contractual waiver or limitation, any legal or other action related to the Purchase Order must be commenced no later than two (2) years from the date on which the cause of action arose.
No modification, amendment, supplement to or waiver of any Purchase Order by Humanscale shall be binding upon the parties unless made in writing duly signed by both parties and specifically referencing the affected Purchase Order. Humanscale’s failure to exercise any right hereunder shall not operate as a waiver thereof.
Any services performed by Supplier shall be performed as an independent contractor, and Supplier is solely liable for applicable payroll or income taxes.
Supplier shall not use the name or trademarks of Humanscale or its affiliates or refer to or identify Humanscale or its affiliates in any marketing materials (including, without limitation, testimonials or customer listings) or press releases without the prior written consent of Humanscale.