EACH PURCHASE ORDER ISSUED BY USGA CONSISTS OF (I) THE ELECTRONICALLY ISSUED ORDER INTO WHICH THE FOLLOWING TERMS ARE INCORPORATED, INCLUDING ALL PRINTED, STAMPED AND WRITTEN MATTER APPEARING THEREON (THE “FACE”), AND (II) THE FOLLOWING TERMS AND CONDITIONS ((I) AND (II) TOGETHER CONSTITUTING THE “ORDER”). IN THE EVENT USGA AND VENDOR HAVE ENTERED INTO A SEPARATE MASTER AGREEMENT (“MASTER AGREEMENT”) FOR THE GOODS AND/OR SERVICES DELIVERED PURSUANT TO A PURCHASE ORDER, THE TERMS OF SUCH MASTER AGREEMENT SHALL CONTROL RATHER THAN THE TERMS AND CONDITIONS HEREIN.
1. ACCEPTANCE OF ORDER BY VENDOR: This Order is an offer by USGA to Vendor (as both parties are identified on the Face of the Order) that will become a binding contract when this Order is accepted by Vendor. Vendor will confirm its acceptance by acknowledgement or commencing work hereunder. Shipment or other commencement by Vendor of any part of this Order constitutes Vendor’s unconditional acceptance of all of the terms and conditions of this Order. Acceptance is expressly limited to the stated terms and conditions of this Order; in no event shall any terms or conditions contained in Vendor’s acknowledgement forms, invoices, billing statements or other documents become part of or apply to this Order whether or not signed by USGA’s representatives, except in the form of an amendment or change order.
2. PACKING AND SHIPPING: Vendor agrees to suitably pack for shipment all goods so as to meet carrier's requirements and all containers will be marked to identify the contents without opening. Packing sheets must be placed both inside and outside of each package. Risk of loss shall not pass until goods are received by USGA in acceptable condition. USGA’s complete Order number must appear on all invoices, shipping notices, packing slips, containers, bills of lading, packages, and correspondence pertaining hereto. Title passes at the final destination point.
3. DELIVERY: Time and rate of delivery are of the essence. Vendor shall immediately notify USGA, in writing, of any actual or potential delay to the performance of this Order. If any good or deliverable is not received or if any element of the work is not completed by the date specified, USGA, at USGA’s option and without prior notice to Vendor, may either approve a revised date or may cancel this Order and may obtain such goods and/or services elsewhere and in either event, the Vendor shall be liable to USGA for any resulting loss incurred by USGA. Vendor’s sole remedy for a delay caused by USGA shall be an extension in the time for Vendor’s performance equal to the duration of USGA’s delay.
4. INSPECTION: The goods and/or services under this Order shall be received subject to USGA’s right of inspection, rejection and revocation of acceptance. No substitution or modification of any goods may be made without USGA’s prior written consent. Any goods and/or services that are not in conformity with Vendor’s representation and warranties set forth in this Order, or implied warranties of Vendor, may be returned to Vendor at Vendor’s expense or rejected, and will be promptly repaired, replaced or reperformed by Vendor on demand at no additional cost to USGA, or at USGA’s option, such goods and/or services may be repaired or reperformed by USGA at Vendor’s expense. Vendor shall bear all costs of packing, shipping and transporting all defective or nonconforming goods. If Vendor does not, in USGA’s discretion, remedy the deficiency, USGA may at any time cancel that particular Order, with USGA having no further liability or obligation, and Vendor shall immediately refund all sums previously paid by USGA thereunder. Payment of the purchase price prior to inspection shall not constitute acceptance by USGA of the goods and/or services. In addition, neither the acceptance of delivery of any goods and/or services nor the inspection thereof by USGA shall be deemed an acknowledgement that such goods and/or services conform to any implied or express representations or warranties relating thereto, and accordingly, such delivery and/or inspection shall not be construed as a waiver of any rights or remedies available to USGA hereunder or at law.
5. BILLING, PRICE AND PAYMENT:
5.1. Unless and except as otherwise stated on the Face of this Order, the price stated includes all packing and cartage costs to F.O.B. Destination freight prepaid and absorbed. USGA shall not be responsible for any taxes or duties other than applicable sales and use taxes imposed by states or localities located in the United States that are not specifically stated below. Vendor agrees to submit invoices and most recent W-9 for all fees and expenses due under this Order hereunder by email to USGA@AvidBill.com. Vendor’s invoices will (a) provide summary level expense reporting, (b) include, if requested by USGA, receipts for pre-approved expenses, and (c) reference USGA’s applicable Order number. Any supplemental SOW Invoices must separately itemize applicable taxes and custom duties, if any. Invoices must be rendered as close to date of shipment of or completion of services as is possible, but not before such date of shipment or completion. Vendor acknowledges that USGA is exempt from Sales and Use Tax in the following states; Colorado, Florida, Indiana (excluding meals & lodging), Kentucky (excluding vehicles), Massachusetts, Michigan, Missouri, New Jersey, New Mexico, New York, Ohio, Rhode Island, Tennessee, Texas (excluding vehicles), Utah (on purchases of $1,000 or more), Vermont, Virginia (excluding lodging), West Virginia, Wisconsin, and Wyoming. Certificates are available upon request.
5.2. Vendor warrants that the prices for goods and/or services to be furnished to USGA hereunder are not less favorable than those currently extended to any other customer for similar quantities of like items under similar delivery requirements.
5.3. Unless specified otherwise, USGA will pay Vendor’s undisputed invoices sixty (60) days from receipt thereof.
5.4. Upon notice to Vendor, USGA may withhold payment for any item(s) on Vendor’s invoice(s) that USGA reasonably disputes. USGA will endeavor to work with Vendor in reaching an acceptable resolution of any disputed item(s), within a reasonable period of time. Pending settlement or resolution of the dispute, USGA’s non-payment of such disputed item(s) shall not constitute default by USGA.
6. CHANGE ORDERS: USGA may, at any time: (a) upon notice to Vendor, revise the goods and/or services in a manner which does not materially change the scope of the goods and/or services; or (b) request, by means of a written request to Vendor specifying the desired change(s), a material change in the scope of the goods and/or services or date of performance agreed to by the parties. Within five (5) business days of receipt of such request, Vendor will submit a proposal, including time and costs, for such changes to USGA. If accepted in writing by USGA, Vendor shall provide and/or perform the modified goods and/or services and provide the applicable deliverables subject to such proposal, including time and costs, in accordance with the terms and conditions of this Order. The applicable Order shall be revised and resubmitted to Vendor accordingly.
7.1. USGA shall have the right to terminate all or any part of this Order with or without cause by giving notice to Vendor of its election to do so. Such termination shall become effective immediately upon receipt of such notice by Vendor, and Vendor will stop work immediately on the terminated portion of this Order, immediately notify subcontractors to stop work and protect property in Vendor’s possession in which USGA has, or may acquire an interest. USGA agrees to pay Vendor the undisputed fees for all goods and/or services which have been completed by Vendor and delivered to and accepted by USGA, subject to USGA’s right of revocation of acceptance and its other rights and remedies hereunder and at law. Vendor will deliver to USGA any property in which USGA has an interest and for which USGA shall make a written request at or after termination. USGA shall have a right to purchase any such requested and delivered property that it has not paid for or does not own by paying Vendor the lesser of the contract price or fair market value of any such property.
With Cause: (a) Vendor breaches or fails to perform any of its obligations hereunder, including with respect to time or rate of delivery of goods and/or services, (b) any representations or warranties of Vendor contained herein shall be incorrect or untrue to a material extent when made or at the time of delivery and/ or rendering of any goods and/or services to USGA hereunder or (c) Vendor becomes insolvent or seeks relief under any bankruptcy or insolvency law, or if any bankruptcy, reorganization, arrangement, receivership or other insolvency proceeding shall be commenced by or against Vendor.
Without Cause: With respect only to termination without cause hereunder, USGA agrees to pay Vendor’s reasonable out-of-pocket costs necessarily incurred by Vendor in the performance of this Order which are properly allocable to the terminated portion of this Order provided, however, that Vendor must use commercially reasonable efforts to mitigate such costs. Any claim for payment of such costs incurred by the Vendor must be submitted in writing to USGA within thirty (30) days of receipt of USGA’s notice of termination, thoroughly documented by invoices or other applicable documents. USGA shall have the right to audit all elements of any termination claim and Vendor shall make available to USGA, on request, all books, records, and papers relating thereto in a form readable by USGA.
7.2. The remedies provided in paragraph 7.1 above shall be Vendor’s exclusive remedies for USGA’s termination and or rescission of this Order and Vendor shall have no other remedy, including, but not limited to, specific performance or loss of profits. IN NO EVENT SHALL USGA BE LIABLE FOR LOST OR ANTICIPATED PROFIT, OR UNABSORBED INDIRECT COSTS OR OVERHEAD, NOR SHALL SUMS PAYABLE UNDER THIS SECTION 7 EXCEED THE UNPAID BALANCE OF THE PRICE STATED ON THE FACE OF THIS ORDER.
8. REPRESENTATIONS, WARRANTIES, COVENANTS: Vendor represents and warrants to USGA, in addition to all warranties implied by law and otherwise provided in writing by the Vendor, manufacturer or service provider, that each good, deliverable or service delivered or performed hereunder shall: (a) be merchantable and fit for USGA’s intended purpose; (b) be free from defects in material, workmanship and design and if consisting of software, firmware or other services relating to USGA’s information technology network, free of viruses or other harmful agents or hidden files; (c) if services, be performed in a professional and workmanlike manner in accordance with industry practice; (d) conform to all drawings, specifications and other descriptions, if any, referred to or set forth herein and all goods, if any, accepted by USGA as samples; (e) comply with, be suitable for use under, be manufactured in accordance with and, where required, be registered under all applicable Federal, state and local laws, and all orders and regulations promulgated thereunder; and (f) not infringe, appropriate or encroach upon personal, contractual or proprietary rights of any third party. Vendor shall provide material safety data sheets with respect to hazardous chemicals as required by regulations of the U.S. Occupational Safety and Health Administration. USGA MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING THIS ORDER EXCEPT IF AND AS EXPRESSLY CONTAINED HEREIN.
9. COMPLIANCE WITH LAWS: Vendor shall comply, and shall require all of its subcontractors to comply, with this Section 9, and perform the services and/or deliver any goods in compliance with all applicable laws, shall refrain from knowingly doing or performing any act that would subject USGA to civil or criminal penalties or other liabilities or damages under any applicable law, and shall maintain all licenses required for Vendor to perform hereunder. This Order shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to principles governing conflicts of laws. The parties consent and agree that all legal proceedings arising out of or relating to this Agreement shall be exclusively maintained in either the federal or state courts in New York, New York.
10. INDEMNITY AND INSURANCE:
10.1. Indemnity. Vendor shall indemnify, defend and hold USGA, its subsidiaries, affiliates, officers, directors, employees and agents harmless from and against any and all liabilities, obligations, losses, claims, damages, costs, charges or other expenses of any kind (including, but not limited to, reasonable attorneys’ fees and legal costs) (collectively, “Claims”) which arise out of or result from any breach or alleged breach of any representation or warranty or obligation made by or agreed to by Vendor hereunder or any Claim that any of the services, any of the deliverables, any portion thereof, or USGA's use or receipt thereof, violates any copyright, patent, trademark, database, trade secret, license, privacy, right of publicity or other proprietary right of any third party. Vendor shall also indemnify, defend and hold USGA, its subsidiaries, affiliates, officers, directors and employees harmless from and against any and all Claims (a) arising out of or resulting from any breach by Vendor of any warranty, representation, covenant or obligation of Vendor under this Order, or (b) for personal injury or damage to property arising out of the furnishing, performance or use of the services provided hereunder as well as any Claim for payment of compensation or salary asserted by an employee of Vendor. USGA expressly reserves the sole right, at USGA’s option, to control the defense of any such Claim and Vendor agrees to provide reasonable assistance to USGA, at Vendor’s expense, in the defense of any such Claim. Vendor shall not settle any Claim without the prior written consent of USGA.
10.2. Insurance. Vendor, at its expense, at all times during the commencement of work hereunder, shall maintain in full force and effect a policy or policies of (a) commercial general liability insurance in the amount (inclusive of any amounts provided by an umbrella or excess policy) of at least five million dollars ($5,000,000); (b) worker’s compensation insurance as required by the laws of the applicable jurisdiction; (c) automobile liability insurance for any vehicles used in the performance of the services herein in the amount of at least two million dollars ($2,000,000); (d) errors and omissions in the amount of at least five million dollars ($5,000,000); and (e) a fidelity bond covering Vendor and its officers and employees with a limit of not less than five million dollars ($5,000,000). Each policy of general liability insurance maintained by Vendor shall name USGA as an additional insured. All insurance must be on an occurrence basis, and not on a claims made basis. Coverage shall be obtained by the Vendor only from insurers who are rated A- 7 or better in the then most recent edition of Best’s Insurance Reports. Each insurance policy shall provide for a waiver of the insurer’s subrogation rights against USGA. Each policy on which USGA is an additional insured shall be endorsed to provide USGA with forty-five (45) days’ notice of cancellation, nonrenewal, or restriction of coverage. At least annually and at such other times as may be requested by USGA but in any case prior to commencement of performance of any services, Vendor shall cause its insurers to deliver to USGA certificates of insurance evidencing the existence of the coverages required under this Order.
11. INTELLECTUAL PROPERTY RIGHTS: Vendor agrees that all services and work product resulting from this Order have been specially ordered or commissioned by USGA as a contribution to a USGA work, that all such work product shall be considered “work-made-for-hire”, and that USGA shall own all right, title, and interest therein. To the extent that any such work product or any portion thereof do not constitute a work-made-for-hire, Vendor hereby grants, assigns, and transfers to USGA any and all right, title, and interest Vendor may have in and to such work product, including all inventions and rights under patent (present and future), trademark and service mark, copyright, and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, including, without limitation, moral rights and similar rights, and all applications and registrations relating thereto, whether presently existing or created in the future, and all rights to use, reproduce, sell and otherwise fully exploit such work product in any and all formats or media and all channels, whether now known of hereafter created, and all rights to sue for past, present, and future infringement. Vendor agrees to execute such further instruments as USGA may request to evidence, establish, maintain, or protect its rights in and ownership of the work product. Vendor hereby waives any and all claims that Vendor may now or hereafter have in any jurisdiction to so-called “moral rights” with respect to the results of Vendor’s work and services hereunder.
12.1. Any designs, specifications, drawings, reprints, technical information, business processes or methods, data or information furnished by USGA to Vendor hereunder, including all secret, confidential or restricted matters that may be disclosed or developed in connection with the work to be performed under this Order (“Confidential Information”) shall remain USGA’s property, shall be kept confidential by Vendor, shall be used only with respect to performance under this Order and shall be returned to USGA or destroyed at USGA’s request. Vendor shall be responsible for the safeguarding of Confidential Information. Each party agrees not to disclose or use at any time, either during or after termination of this Order, any proprietary or Confidential Information of the other party acquired or developed during the course of the engagement, and for a period of three (3) years thereafter. Vendor acknowledges and agrees that Vendor shall have no proprietary interest in or rights with respect to any information developed or obtained by Vendor regarding any USGA Confidential Information during the course of this engagement.
12.2. Vendor shall not, without USGA’s prior written consent, disclose the fact that Vendor has an Order to furnish goods and/or services to USGA, or that Vendor has provided any goods and/or services to USGA, or refer to USGA in any customer list, press release, external advertising, marketing or promotional materials or other otherwise use USGA’s name, trademarks or product image in any manner unless expressly provided for in the Master Agreement.
13.1 Failure of USGA to enforce any provision at any time shall not act as a waiver of that provision or any other provision hereof at any subsequent time. All rights and remedies granted to USGA hereunder shall be cumulative and not exclusive and shall be in addition to and not in lieu of USGA’s rights arising under this Order or otherwise.
13.2. None of Vendor’s rights or obligations under this Order may be assigned without USGA’s prior written consent.
13.3. Vendor shall not be responsible for delays or defaults in deliveries, nor shall USGA be obligated to pay for such defaulted deliveries, if occasioned by wars, strikes, fire, an act of God or a public enemy, labor or transportation difficulties or other causes beyond the control of the affected party, provided such default or delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented by Vendor through the use of alternate sources, work-around plans or other means.
13.4. All notices and other communications by either party under this Order shall be in writing and shall be deemed to have been given or made as of the date received if sent by personal delivery, first class mail, postage prepaid, or recognized courier to the other party at the address of such party indicated on the Face of this Order.
13.5. This Order contains the entire understanding between the parties with respect to the subject matter contained herein and supersedes all prior or contemporaneous oral or written agreements concerning this subject matter. This Order may only be modified in a writing signed by USGA’s authorized representative expressly approving the specific modification.