Purchase Order Terms and Conditions
1. SCOPE OF THIS PURCHASE ORDER
The terms and conditions of this purchase order do not supersede the terms and conditions of fully executed agreements between the vendor and Northern that 1) govern the purchase of products and/or services in this purchase order and 2) are in effect at the time of this purchase order. In the event of any conflict in the terms and conditions between this purchase order and the executed agreements, the terms and conditions of the executed agreements shall govern. This purchase order shall govern for terms and conditions on which the executed agreement is silent or where there is no executed agreement. No other terms and conditions supersede this purchase order. The terms and conditions of this purchase order shall govern in the event of a conflict with the terms of the vendor’s proposal or quotation.
2. WARRANTY
The vendor warrants that the product and/or services delivered hereunder shall be free from all defects in material and workmanship and will be in compliance with specifications set forth in the vendor’s published documentation. If Northern determines that such products and/or services are defective and that the defects will have a material adverse impact on its business and/or operations, then Northern shall notify the vendor and the vendor agrees that in addition to any non-monetary remedies that are available, Northern can recover refunds and/or credits as liquidated damages and not as a penalty. In addition, the vendor warrants that Northern will have absolute rights to the deliverables under this purchase order, free from any and all liens and encumbrances. Also, the vendor warrants that the deliverables to be provided under this purchase order shall comply with all applicable local, county, state or national laws and regulations. Finally, the vendor warrants that it has not provided anything of value to any Northern employee or employee family member in exchange for obtaining business from Northern. The vendor warrants to Northern that: 1) the services shall be performed in a good and workmanlike fashion, and with all due speed, care and skill and diligence; 2) the services shall be carried out by properly qualified personnel of the vendor and in accordance with any specifications supplied by Northern and in accordance with best standards prevailing in the vendor’s industry; 3) all packages and documents shall carry prominent warnings in English and shall be labelled in accordance with all statutes, statutory instruments, regulations, and be free from any defects in workmanship or material; 4) the use of the products or software or receipt of the services by Northern shall not infringe any intellectual property or similar proprietary rights; and 5) the vendor shall specify in any delivery note or completion certificate any operational or health risk which may arise during handling, storage, use or disposal after use, including “known” misuses of the products.
3. ACCEPTANCE
Northern will have a minimum period of 30 business days from receipt of products and/or services to determine if the product and/or services are acceptable. Northern will notify the vendor as soon as reasonably possible of any factors affecting acceptance. The vendor will then have 30 calendar days to rectify the factors affecting Northern's acceptance. If the vendor cannot make the necessary corrections within this applicable cure period, the vendor will refund any payments made by Northern for such products and/or services, and Northern shall have no further obligation to the vendor. Return shipping costs for any rejected products will be at the vendor’s expense. Title to and risk in all goods covered by this purchase order will be transferred to Northern upon delivery thereof to and acceptance thereof by Northern. Prior to that Northern will have an exclusive lien on the goods, to the extent of advance payments if any, made to the vendor in respect thereof.
4. PAYMENT
Unless this purchase order states otherwise, Northern will have 60 days from the receipt of the vendor’s invoice to make payment, provided the invoice is accurate, correct and undisputed by Northern. Northern is not obligated to pay incorrect invoices. At Northern‘s election, it may pay undisputed amounts on incorrect invoices. Northern will not be in default if it does not pay any disputed invoice. All invoices must contain Northern’s purchase order number; ship to address; shipping date of the products; completion date of the services; line item description; quantity of products shipped or backordered; unit purchase price for products; unit fees for services; product serial numbers; taxes (if applicable); and a list that separates prices and fees for taxable/nontaxable purposes. The vendor will mail all invoices to Northern’s Accounts Payable Division. The vendor will pay all packing, crating, freight and insurance charges in connection with shipment and delivery of products unless this purchase order states that Northern will be responsible for any such charges.
5. TAXES
(a) The vendor shall be responsible for any sales, service, value-added, use, excise, consumption and any other taxes and duties on the goods or services it purchases or consumes or uses in providing the services, including taxes imposed on the vendor’s acquisition or use of such goods or services.
(b) Subject to Section 5(e) below, unless Northern provides the vendor with a valid and applicable exemption certificate, Northern will be responsible for sales, use, excise, services, consumption and other taxes or duties (excluding value-added tax) that are assessed on the purchase, license or supply of services and for which the vendor invoices Northern before the expiration of the applicable Northern statutory period for assessment of deficiencies. Northern will not be responsible for any penalties related to the tax obligations of the vendor unless such penalties accrue solely based on the actions or inactions of Northern despite reasonable notice from the vendor. The vendor will be responsible for remitting applicable taxes on a timely basis. If Northern should pay any tax to the vendor and if it is later held that that tax was not due, the vendor will refund to Northern the amount paid, together with all related interest.
(c) Northern and the vendor (for itself and its agents, representatives and subcontractors) shall each bear sole responsibility for all taxes, assessments and other real property related levies on its owned or leased real property, personal property (including software), franchise and privilege taxes on its business, and taxes based on its net income or gross receipts. The vendor’s personnel shall not be considered employees of Northern by reason of their provision or termination of services under this purchase order and the vendor shall bear sole responsibility for all payroll and employment taxes relating to the vendor’s personnel.
(d) Any additional sales/use taxes assessed on the vendor’s provision of services resulting from the vendor’s change in location from the location originally contemplated pursuant to the purchase order or that result from the relocation or redirection of the delivery, including temporary storage, of such deliverables either of which is made for the vendor’s convenience shall be paid by the vendor.
(e) Notwithstanding anything herein to the contrary, Northern may deduct withholding taxes, if any, from payments to the vendor where required under applicable laws. For vendors in United States, and for vendors providing products or services to Northern in United States, this includes, without limitation, any withholding under Section 1441 of the U.S. Internal Revenue Code that has not been reduced or eliminated by provision by the vendor of valid certification of entitlement to benefits under a double taxation treaty, if applicable. The vendor shall cooperate to provide Northern with a properly completed IRS Form 8233, W-8BEN, W-8ECI, W-8IMY, or W-9, as appropriate, to certify its status for U.S. tax purposes. Northern shall, as required by law or at the vendor's written request, provide the vendor with appropriate receipts (or IRS Form 1042-S, if applicable) for any taxes so withheld to the extent that Northern has received such receipts from the applicable taxing authority, or is required by applicable law to provide such receipts.
(f) Northern and the vendor shall cooperate to segregate the charges and fees payable under this purchase order into taxable and non-taxable categories to minimize sales, use and excise taxes. Where required by law to support the taxable and non-taxable classifications, the vendor shall separately state on its invoices the portion of the fees that are and are not subject to any sales, use or excise taxes the vendor is collecting from Northern, together with the amount of such taxes. With respect to any charges and fees payable under this purchase order for the provision of services, any non-U.S. vendor shall state on its invoices the percentage of any such services performed in the United States.
(g) Northern and the vendor shall reasonably cooperate to more accurately determine each party's tax liability and to minimize such liability to the extent legally permissible. Northern and the vendor shall provide and make available to the other party any resale certificates or information reasonably requested by such other party. If either party is assessed a deficiency for taxes, which are the responsibility of the other party pursuant to the purchase order, the assessed party will make a reasonable effort to notify the responsible party of such assessment. Each party also will have the right to challenge the imposition of taxes for which it is financially responsible under this purchase order or, if necessary, to challenge the imposition of any tax, and such request will not be unreasonably denied, provided that the requesting party will be responsible for all fines, penalties, interest, additions to taxes or similar liabilities imposed in connection therewith plus any legal fees and other expenses related to such challenge. Each party will be entitled to any tax refunds or rebates granted, including any interest paid thereon, to the extent such refunds or rebates are on taxes that were paid by it.
6. CANCELLATION OF THIS PURCHASE ORDER
Northern may cancel this purchase order, in whole or in part, in the event that the vendor (i) fails to deliver any of the items purchased within the time provided, (ii) violates any of the conditions of this purchase order, or (iii) if it becomes evident that the vendor is not conducting its work in accord with specifications or with such diligence as to permit delivery on or before the scheduled delivery date. In the event Northern cancels this purchase order in whole or part, Northern may procure products or services similar to those so cancelled and the vendor shall be liable to Northern for any material excess costs for such similar products or services. Northern will not be required under any circumstances to pay cancellation, restocking or any similar fees or penalties relating to its cancellation of this purchase order.
7. DELIVERY
Each package delivered to Northern must (a) be labeled with Northern’s purchase order number; (b) contain an itemized packing slip; and (c) be properly packed for shipment. The vendor will not make partial shipments under this purchase order without the prior written approval of Northern. Delivery of all products are F.O.B (Freight On Board) to Northern and include "inside de1ivery" (i.e., delivery to Northern's designated floor location) unless such delivery is restricted to Northern's loading dock due to local regulations in effect at the applicable Northern location. The vendor shall be liable for breakages, damages or losses resulting from defective or faulty packing or from accidents or acts or omissions of transporter.
8. INSURANCE
The vendor shall obtain and keep in force at its sole expense during the term of this purchase order reasonable insurance to cover its risks hereunder with coverage that will include, if readily available and commensurate with the products and/or services being delivered, commercial general liability insurance, workers’ compensation insurance, automobile liability insurance and professional liability insurance. The vendor shall upon request produce the relevant policy or policies of insurance and evidence of payment of the current premium and provide copies of the same to Northern. If the policy or policies are to be cancelled, renewed or materially altered as to affect coverage under this purchase order, the vendor shall provide at least thirty (30) days written notice to Northern prior to any such cancellation, renewal or alteration.
9. INDEMNIFICATION
(a) The vendor agrees to indemnify, defend and hold harmless Northern and its affiliates, and their respective officers, directors, employees, contractors, agents and representatives from and against any and all amounts payable under any judgment, verdict, court order or settlement resulting from (i) any infringement or misappropriation or alleged infringement or misappropriation of any trade secrets, copyrights, trademarks or trade names of any third party or any other intellectual property rights by the vendor related to the products and/or services, (ii) the death or bodily injury of any Northern agent, employee, business invitee, business visitor or other person caused by the negligence or other tortuous conduct of the vendor or the failure of the vendor to comply with its obligations under this purchase order, and (iii) the willful misconduct or fraudulent acts or omissions of the vendor.
(b) Should Northern‘s use of such products and/or services as permitted hereunder be determined to have infringed, or if such use is likely to be infringing, the vendor, at its option, will: (i) procure for Northern the right to continue using such products and/or services provided, or (ii) replace or modify them to make their use non-infringing while capable of performing substantially the same function. If neither of the above options are or would be available, then Northern may terminate this purchase order, at which time Northern shall return such products provided by the vendor, and the vendor, in addition to any indemnification obligations contained herein, will refund to Northern all payments made for such infringing products and/or services.
10. CONFIDENTIALITY
(a) CONFIDENTIAL INFORMATION means any and all documents, data, or information, whether written, electronic, graphic, or oral, that is disclosed or made available by Northern to the vendor or its affiliate(s) in connection with the business purpose and includes without limitation: (i) information about the business affairs or customers of Northern, or products or services supplied by third parties to Northern; (ii) information about the business affairs or customers of affiliates, or products or services supplied by third parties to affiliates; (iii) computer software, hardware other equipment, data bases, data processing or communications networking systems that are the proprietary property of Northern; (iv) practices or procedures and other internal systems or controls (in any state of development) and related documentation; and (v) all discussions, communications or other interactions that have taken or will take place between the parties, (including the fact that discussions are taking place) concerning the mutual business opportunities contemplated in this purchase order.
(b) The vendor hereby agrees to maintain the confidentiality of Northern’s Confidential Information with at least as great a degree of care as it uses for the vendor’s own Confidential Information , and at a minimum, the vendor shall take necessary and reasonable precautions to prevent such information from being disclosed to any person, firm, or company not specifically authorized in writing by Northern. The vendor agrees not to sell, transfer, publish, disclose, display or otherwise make available to others, nor to use any Confidential Information except to carry out the purposes for which Northern disclosed the information to the vendor.
(c) It is understood and agreed that in the event of a breach of the obligations of confidentiality under this purchase order by the vendor, damages may not be an adequate remedy and Northern shall be entitled to seek any and all remedies available under applicable laws.
11. PUBLIC REFERENCES
The vendor will not: (i) use in advertising, publicity, or otherwise the name of Northern, or any affiliate of Northern, or any partner or employee of Northern, nor any trade name, trademark, trade device, service mark, symbol or any abbreviation, contraction or simulation thereof owned by Northern or its affiliates; or (ii) represent, directly or indirectly, that any product or service provided by the vendor has been approved or endorsed by Northern. The vendor will not provide or disclose to any third party, unless authorized in writing to do so by Northern or properly directed or ordered to do so by a public authority, any information or matter that constitutes or concerns the negotiation process of this purchase order or any terms or conditions of this purchase order. Without in any way limiting what constitutes a material breach under this purchase order, it is acknowledged that failure to comply with this provision will constitute a material breach, and Northern shall be entitled to immediately terminate this purchase order for cause and seek, in addition to monetary damages, any temporary or permanent injunction or any other equitable relief.
12. AUDIT
Northern is required by its regulatory examiners to have agreements with its service providers that permit audits of their respective service locations. On notice from Northern, the vendor shall provide such internal auditors, external auditors, and inspectors as Northern or any regulatory authority may designate, with reasonable access to service locations where the vendor provides services for Northern to perform auditors or inspections of vendor’s business operations. The vendor shall provide such auditors and inspectors any assistance that they may reasonably require. If any audit results in the vendor being notified that the vendor, or any vendor personnel, is not in compliance with laws, regulations, policies, or interpretations thereof promulgated by any regulatory authority, any generally accepted accounting principles, or other audit requirements relating to the products and/or services, the vendor shall immediately take all actions necessary (at its sole cost and expense) to remedy the deficiency and bring itself and its personnel (as applicable) into compliance.
13. WORK PRODUCT
Northern will own all written material and other “work-for-hire” that are originally prepared expressly for Northern and delivered to Northern under this purchase order (“NT Materials”). The vendor shall own any general skills, know-how, expertise, ideas, concepts, methods, techniques, processes, software, materials or other information that is created, developed or derived by the vendor other than the NT Materials. The vendor’s Confidential Information belong exclusively to the vendor. Northern will have an irrevocable, fully paid, non-exclusive, non-transferable, worldwide, royalty-free license to use the vendor’s Confidential Information for Northern‘s own internal use, to the extent that they form part of the deliverables in this purchase order
14. GOVERNING LAW
This purchase order will be governed by and construed in accordance with the applicable laws of the State of Illinois, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding brought by it in any way arising out of this purchase order must be brought solely and exclusively in, and will be subject to the services of process and other applicable rules of, the state or federal courts in the State of Illinois, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Illinois, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. Notwithstanding the foregoing, claims for equitable relief may be brought in any court with proper jurisdiction within the United States. The United Nations Convention on the International Sale of Goods does not apply to the transactions contemplated by this purchase order. The Uniform Computer Information Transactions Act (“UCITA”) shall not apply to this purchase order regardless of when and howsoever adopted, enacted and further amended under the laws of the State of Illinois or any other state. The terms of this purchase order are to be construed, interpreted and enforced in accordance with the laws of the jurisdiction where the services are performed or the product is supplied without regard to conflict of law principles.
15. MOST FAVORED CUSTOMER
The vendor hereby represents that all charges shall be competitive with, or more customer-favorable than, the vendor’s charges for similar products or services to the vendor’s most favored customers. If the vendor offers more favorable fees to any other similarly situated customer than are offered to Northern under any purchase order, then the vendor will concurrently extend those terms and conditions to Northern, and this purchase order, at Northern’s option, will be amended to provide those terms to Northern. Any amounts charged to Northern in excess of prices offered by the vendor to any other similarly situated customer for products or services will promptly be refunded or credited to Northern by the vendor, at Northern’s option.
16. ASSIGNMENT
Unless Northern has provide written authorization in this purchase order, the vendor shall not, directly or indirectly, assign, set over, or transfer this purchase order, nor delegate duties or obligations, in whole or part, under this purchase order.
17. FORCE MAJEURE
In the event of stoppage or delay of any Northern requirements under this purchase order due to strikes/lockouts or any act of God or any other unforeseen event beyond the reasonable control of Northern, Northern reserve the right to cancel or modify the purchase order without liability for compensation or claim.
18. TERMINATION
If any of the following events occur, Northern shall be entitled to terminate this purchase order forthwith by written notice to the vendor without any liability on the part of Northern :
(a) the vendor commits a material breach of this purchase order(including any breach of warranty) and, in the case of a breach capable of remedy, fails to remedy the breach within ten (10) days of a notice from Northern requiring the breach to be remedied;
(b) a receiver, administrator or administrative receiver is appointed over the whole or a material part of the vendor’s assets or undertaking or the assets or undertaking of any guarantor of the vendor’s obligations hereunder;
(c) any steps are taken to wind up the vendor or with a view to presenting an administration order against the vendor or proposing any kind of composition, scheme of arrangement, compromise or arrangement involving the vendor and its creditors generally;
(d) if the vendor is an individual, a bankruptcy petition is or may be presented against it; or
(e) any distress, execution or other legal process is levied on or against any unpaid products or any premises where the unpaid products may be located or any of Northern’s other goods.
If this purchase order is terminated pursuant to this clause 18, Northern shall not be liable to the vendor for loss of anticipated profits, loss of goodwill or any other consequential loss or damage howsoever arising from such termination.
Upon termination of this purchase order, the vendor shall provide all reasonable assistance as Northern may request to effect a smooth handover of the supply of products or provision of services back to Northern , or to a replacement vendor.
Any termination of this purchase order, howsoever occasioned, shall not affect any accrued rights or liabilities of either party.
19. SPECIAL CONDITIONS RELATING TO THE LICENCE OF SOFTWARE
The following provisions of this Section 19 shall apply only to purchase orders procuring a licence for software from the vendor.
The definition of “Products” shall include the physical media on which software which is the subject of the relevant purchase order is provided.
The vendor hereby grants to Northern a worldwide, perpetual, non-exclusive, non-transferable licence to use the software and associated documentation within the Northern group of companies
The vendor hereby represents, warrants and undertakes that:
(a) at the commencement of this purchase order the software will be compatible with and will not adversely affect the operation of any equipment owned or operated by Northern
(b) the vendor has, using the most up-to-date software available, tested for (and deleted) all commonly known viruses in the software and for all viruses known by the vendor at the date of this purchase order ; and
(c) at the time of its delivery to Northern the software does not contain any Trojan horse, worm, logic bomb, time bomb, back door, trap door, keys or other harmful components.
20. DATA PROTECTION
The vendor warrants, represents and undertakes to Northern that with respect to the provision of services or products in the United Kingdom:
(a) it has and will continue to have full legal authority to control and process any “personal data” (as that term is defined in the Data Protection Act 1998 (“DPA”)) provided by Northern , (the “Data”) and that it will only control and process Data in accordance with all applicable data protection laws from time to time;
(b) it has in place and undertakes to maintain throughout the term of this purchase order appropriate technical and organizational measures against the accidental, unauthorized or unlawful processing, destruction, loss, damage or disclosure of Data;
(c) where it processes data as Northern’s data processor (as defined in the DPA), it will process Data only in accordance with instructions received from Northern; and it will take all reasonable steps to ensure the reliability of all employees of the vendor who have access to the Data.
21. WHOLE AGREEMENT AND VARIATION
This purchase order contains the whole agreement between the parties relating to the sale of the products, licensing of the software or the performance of the services which are the subject matter of this purchase order and no variation shall be effective unless in writing and signed by both parties.
22. SEVERANCE
If any provision of this purchase order is or becomes illegal, invalid or unenforceable in whole or in part, such provision or part shall to that extent be deemed not to form part of this purchase order and shall not affect the legality, validity or enforceability of the remainder of this purchase order.
23. NOTICES
Any notice to a party in relation to this purchase order shall be in writing and may be delivered personally or sent by pre-paid first class post to such party’s respective directors and/or contact name at its address set out in the purchase order or sent by facsimile to its facsimile number set out in the purchase order or to any other address or facsimile number for service which such party has previously notified to the other. Any notice sent by post shall conclusively be deemed to have been received three days from the time of posting and, if sent by facsimile shall conclusively be deemed to have been given at the time of despatch.
24. WAIVER
Any failure by Northern to exercise or enforce any rights under this purchase order shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement of such right at any time or times thereafter.