These Purchase Order Terms and Conditions (“Terms”), including all terms set forth in a Purchase Order (“PO”) provided by E2open, LLC or any of its affiliated group companies, as identified on the PO (“Purchaser”) govern the order of goods and/or services from a vendor or supplier, as identified in a PO (“Vendor”). These Terms supersede all previous negotiations between the parties and represent the entire agreement related to the goods and/or services ordered.
Offer and Acceptance; Conflicting Terms. If a PO is construed as an offer, acceptance is limited to the offer’s terms, and Purchaser hereby rejects any different or additional terms. If a PO is construed as acceptance of an offer, E2open’s acceptance is conditioned upon Vendor’s acceptance of these Terms over any conflicting terms in an offer. Vendor accepts a PO and agrees to be bound by and comply with the Terms upon any of the following (i) Purchaser’s receipt of written acceptance of a PO, (i) delivery of all or part of the goods to Purchaser, (ii) performance of any services at any Purchaser’s (including remote access to any Purchaser systems), and/or (iii) performance of any services by Vendor for Purchaser. E2open rejects all terms and conditions other than those herein.
Delivery of Good or Services. Vendor shall inform Purchaser immediately if it cannot meet delivery or completion times identified in a PO. Purchaser may make changes to delivery or completion terms in writing. Purchaser may inspect all goods supplied by Vendor prior to accepting delivery. If (i) goods are not received by Purchaser or any delivered goods are non-conforming or defective (including if it is later determined to be subject to a product recall); or (ii) Vendor does not complete all elements of the services by the date(s) specified on the PO; or (iii) Vendor fails to comply with these Terms, Purchaser, at its sole option, may (a) reschedule the date, (b) cancel all or part of a PO, and/or (c) reject any goods received or revoke any previous acceptances of services. Purchaser shall not be subject to any charges or fees related to said rescheduling, cancellation, rejection or revocation. Acceptance of any ordered goods or services under a PO, in whole or in part, shall not prevent Purchaser from returning goods (non-conforming or otherwise) or rejecting services already accepted. For delivery of goods and/or performance of the services, time is of the essence.
Payment. Vendor shall invoice Purchaser for all goods delivered and services performed under a PO, and E2open shall pay the amount invoiced subject to its acceptable of the goods or services delivered and for an amount not to exceed the amount stated in a PO, for both line item and total amounts. Payment is subject to Purchaser’s acceptance of goods or services which conform to the Terms. Applicable Federal, State, and local taxes and duties shall be itemized on Vendor’s invoice. Each party shall be responsible for its own taxes. Vendor assigns to Purchasers all rights to any rebates, warranties, and refunds of sales and use taxes paid in connection with a PO and agrees to cooperate with Purchaser as Purchaser deems necessary in order to receive the benefit of such rights. Unless agreed to in writing, Purchaser shall not be responsible for shipping, handling, fuel surcharges, or any other fees. Vendor will follow all instructions written on a PO regarding invoicing and will comply with Purchaser’s invoicing instructions provided to Vendor, as may be updated by Purchaser from time to time.
When Purchaser sends payment, such as mails a check or submits for a wire or ACH transfer, payment is deemed completed. All invoices must be received within 90 days of completion of services or delivery of goods otherwise Seller waives its right to receive payment. Purchaser will pay a valid, properly submitted, and undisputed invoice within 60 days of receipt. If Purchaser disputes an invoice, Purchaser will notify Seller of the dispute in writing within 60 days of receipt. During a dispute, Purchaser may withhold payment of the disputed amount and such payment will not be considered past due. The parties will endeavor to resolve the dispute within 30 days. Purchaser will not be responsible for late fees, accrued interest, or any other charges due to incorrect or disputed billing.
Warranties. Vendor represents and warrants that it has good and transferable title to the goods, and all goods provided will be new and not used or refurbished, unless documented as such in a PO. Vendor represents and warrants that all goods delivered and work performed, as applicable, will be (i) free from latent and patent defects in material and workmanship; (ii) in conformity with all plans, specifications, descriptions and drawings provided by or to Purchaser; (iii) in conformity to Vendor’s samples, representations, and promises; (iv) completed in a professional, workmanlike manner, with the degree of skill required by the current professional standards of Vendor’s industry; (v) merchantable and suitable for their intended purpose and for Purchaser’s particular purpose; (vi) free from any claims, liens, or encumbrances; and (vii) subject to all warranties provided by law. If Purchaser identifies a problem with the goods during the warranty period, Purchaser will notify seller and seller will, at its option and expense, repair, replace or refund the amount paid by Purchaser for such nonconforming goods.
Risk of Loss. Unless the PO states otherwise, Vendor shall deliver all goods DDP – Delivered Duty Paid — to the Ship To location on the PO. Vendor assumes full responsibility for packing, crating, marking, transportation and liability for loss and damage, even if Purchaser agreed to pay freight, express, or other charges. Should Purchaser’s use of any goods or services be subject to any legal proceeding that would interfere, as determined by Purchaser, with Purchaser’s intended use of the goods or services, Vendor shall, at its expense and option ,and to Purchaser’s satisfaction; (a) substitute equivalent non-infringing goods or services; (b) modify the goods or services to avoid infringement while remaining equivalent in functionality; (c) obtain for Purchaser the right to continue using the goods or services; or (d) if none of the foregoing are possible, refund amounts paid for the infringing goods or services.
Termination Without Cause. Purchaser, in its sole discretion and without cause, may terminate a PO, in whole or in part, at any time without incurring liability to Vendor for lost profits, or any other costs or damages, other than the proportionate value of the purchase price for services completed on behalf of or goods delivered to Purchaser prior to termination. Payment due shall be a percentage of the purchase price equal to the percentage of the services completed and/or any unit prices in the purchase price specified for goods delivered as reasonably determined by Purchaser.
Indemnity. Vendor shall indemnify, and at Purchaser’s request, defend Purchaser, its officers, directors, shareholders, employees, affiliates, and agents from and against any and all claims, liabilities, obligations, damages, losses, costs, fines, penalties, suits, actions, judgments, and expenses, including litigation and settlement costs and attorneys’ fees and expenses, occasioned wholly or in part by Vendor, its agents, independent contractors, subcontractors, suppliers or employees’ act or omission or negligence or fault in connection with the goods and/or services provided hereunder, including without limitation (i) those based on death, bodily injury, personal injury, or destruction of or damage to property; (ii) Vendor failing to satisfy the Internal Revenue Service’s guidelines for an independent contractor; (iii) those based on gross negligence, intentional acts or willful misconduct; (iv) Vendor failing to satisfy its obligations with regard to protection of Confidential Information; (v) Vendor failing to comply with applicable law or regulation; (vi) those based on contamination or adverse effects on the environment; (vii) Vendor failing to pay subcontractors or suppliers; (viii) those alleging infringement of any patent, copyright, trademark, trade secret or other intellectual property right or proprietary right of a third party; or (ix) any breach of these Terms. Vendor shall not settle any claim without Purchaser’s prior written approval. If, at any time, Purchaser becomes involved in a dispute, or litigation, or receives notice of a claim concerning a PO, resolution of which requires the services or cooperation of Seller, and Seller is not otherwise obligated to indemnify and defend Purchaser, Vendor agrees to provide such services and to cooperate with Purchaser in resolving such claim or litigation. If Vendor receives notice of a legal claim against it in connection with a PO, Vendor shall submit appropriate written notice of such claim to its insurance carrier within the time frame required for submission of claims by the applicable insurance policy and, within five business days of receipt of notice of the claim, to Purchaser.
Limitation of Liability. PURCHASER, INCLUDING ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AFFILIATES, AND AGENTS, SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOST PROFITS, LOST REVENUE, OR BUSINESS INTERRUPTION) ARISING OUT OF, BASED ON, OR RESULTING FROM A PO, EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS AND REGARDLESS OF THE NEGLIGENCE OR OTHER FAULT OF EITHER PARTY, REGARDLESS OF WHETHER SUCH LIABILITY SOUNDS IN CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER THEORY OF LIABILITY. THESE LIMITATIONS APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. THE AGGREGATE CUMULATIVE LIABILITY OF PURCHASER FOR AND ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH A PO, ITS TERMINATION, OR ANY GOODS OR SERVICES ORDERED, WILL NOT EXCEED THE LESSER OF (i) THE AMOUNT PAID BY PURCHASER TO VENDOR UNDER THE PO FOR SUCH GOODS OR SERVICES OR (ii) FIVE HUNDRED DOLLARS ($500.00).
Insurance. Vendor shall, at its sole cost and expense, procure and maintain, or cause to be procured and maintained, the types and minimum limits of insurance as specified below covering its performance under a PO. All insurance shall be from reputable insurers acceptable to Purchaser. Self-insurance shall require Purchaser’s Chief Financial Officer’s approval in writing and absent such is not permitted. All insurance shall be written on an “occurrence” basis and not a “claims-made” basis. Upon request, Vendor shall provide to Purchaser a current certificate of insurance for each of the policies required below.
- Workers’ Compensation insurance meeting the statutory requirements of the state(s) or jurisdictions in which services are to be performed;
- Comprehensive general liability insurance with limit of $1,000,000 per occurrence / $2,000,000 annual aggregate, covering bodily injury; property damage; blanket contractual liability; and personal injury liability, naming Purchaser as an additional insured and ensuring that the appropriate policy endorsement is in place to give effect to the additional insured status, and including a waiver of subrogation;
- Auto liability coverage of $1,000,000 combined single limit where Vendor will be using vehicles to deliver any part of the goods or services;
- If a PO has an order for professional services, professional liability coverage of $1,000,000 with a deductible not to exceed $50,000, with coverage for errors and omissions including liability assumed under a PO.
- If a PO includes an order for goods or services whereby Vendor will have access to or interact with any or all of the following: Purchaser’s data, computer systems, and/or software, cyber liability coverage of $1,000,000 with a deductible not to exceed $50,000.
Independent Contractors. Purchaser and Vendor are independent contractors with respect to each other.
Services Performed at E2open Location(s). For all services performed at location(s) owned, leased or otherwise controlled by Purchaser, Vendor shall (i) maintain a sufficient workforce to carry out its obligations in an efficient and timely manner; (ii) employ only competent, skilled, reliable and honest worker to coordinate the provision of its services and work in conjunction with other workers at the location(s) in a professional manner; (iii) immediately remove from the location(s) any employee or agent who, in Purchaser’s opinion, represents a threat to safety or progress of the services or persons at the location(s), or who has engaged in any improper conduct, including without limitation, conduct which Purchaser perceives as constituting harassment; (iv) provide all labor, materials, tools, equipment, and other items necessary for performance of the services; (v) secure all materials and the location(s) and leave all areas broom clean (unless Purchaser requires a more stringent cleanliness standard) and in safe condition at the end of each day and upon completion of the services; (vi) ensure Seller conducts Federal, state and county of residence criminal background checks on all persons performing services at the location, and exclude from the location any dishonest, dangerous or otherwise unqualified persons; and (vii) comply with all policies and procedures provided by Purchaser to Vendor or publicly posted in locations or on the internet, such as those posted on Purchaser’s website or E2open’s website, e2open.com, like https://www.e2open.com/customer-security-policy/. Anyone who performs services under a PO is deemed to be a Vendor employee or agent.
Confidentiality. If the parties have an active Non-Disclosure Agreement (“NDA”) that governs the exchange of confidential information while performing under a PO, the terms of the NDA control, not this section, regarding Confidential Information. Vendor may acquire knowledge and information about Purchaser before, during, or after its performance under a PO (“Confidential Information”) and agrees to keep Confidential Information in confidence. Confidential Information includes all non-public, proprietary, sensitive, or confidential information, in whatever form, and whether or not marked or designated as “confidential” at the time of disclosure to Vendor, or which by its nature should be reasonably understood by Vendor to be confidential or proprietary. Confidential Information does not include information (i) already in the Vendor’s possession at the time of disclosure and without restriction as to confidentiality, (ii) which is or becomes available to the public or otherwise ceases to be confidential through no breach of the Terms, including an NDA as applicable, or other wrongful act by Vendor, (iii) received from a third-party without restriction on disclosure and without breach of these Terms or other wrongful act by Vendor, and; (iv) developed by Vendor without benefit or use of Confidential Information. Vendor may disclose Confidential Information pursuant to a requirement of a government agency or law, and shall provide immediate notice to Purchaser of such disclosure. Vendor agrees to limit internal distribution of Confidential Information to Vendor’s employees, agents and subcontractors who have a need to know in order to perform its obligations under a PO.
Compliance with Laws. Seller (1) represents and warrants that it complies with, shall comply with, and shall ensure all subcontractors and affiliates comply with (a) all national or international laws and regulations, which are applicable to the provision or use of the services, including, those relating to export control and sanctions compliance (including sanctions administered by the United States Department of the Treasury Office of Foreign Asset Control), occupational health and safety, environmental matters, anti-money laundering, terrorism, wages, working hours and conditions of employment, discrimination, data protection and privacy; and (b) all applicable anti-corruption laws and regulations, including without limitation the US Foreign Corrupt Practices Act and the UK Bribery Act of 2010; (2) further represents, warrants, and covenants that it and its officers, directors, shareholders, employees, agents and other intermediaries, and any other person acting directly or indirectly on its behalf, shall not, directly or through third parties, give, promise or attempt to give, or approve or authorize the giving of, anything of value to any person or any entity for the purpose of (i) securing any improper advantage for either party; (ii) inducing or influencing a public official improperly to take action or refrain from taking action in order for either party to obtain or retain business, or to secure the direction of business to either party; and/or (iii) inducing or influencing a public official to use his/her influence with any government or public international organization for such purpose. The UN Convention on Contracts for the International Sale of Goods does not apply to a PO.
Governing Law. The PO shall be governed by the laws of the State of Texas, without regard to conflict of law principles. The parties hereby irrevocably consent to personal jurisdiction in Travis County, Texas and agree to resolve all disputes in the applicable federal or state courts for Travis County, TX.
Assignment; Subcontracting. Vendor may not assign or transfer the PO or any of its benefits without prior written consent of Purchaser. Except in the case of standard material goods, or as otherwise agreed to in writing by Purchaser, Vendor shall not delegate or subcontract the work on any item of material or service to be performed hereunder.
No Waiver. No waiver of any or all of the Terms shall be valid unless in writing by an authorized person, nor will failure to enforce any right hereunder constitute a waiver of that right or of any other right hereunder.
Severability. The Terms shall be severable. If any of the Terms or their application to any specific situation shall be held to be invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect any of the other Terms or their application to any other situation.
Survival. Vendor’s warranties, Vendor’s liability for defective or non-conforming work or goods, confidentiality obligations, indemnification and defense obligations, and all sections of a PO that by their nature would survive its termination, in part or in whole, will survive and remain in full force and effect after the termination or expiration of a PO.