OVH PURCHASE ORDER TERMS AND CONDITIONS
- Order; Acceptance. The purchase order is OVH’s offer to Supplier and is not an acceptance by OVH of any offer to sell by Supplier or of any terms and conditions contained in any such offer. Acceptance of this offer by Supplier should be made by (a) executing and returning the acknowledgement copy, or (b) delivering any of the goods ordered herein or (c) rendering any of the services ordered herein. Any additional or different terms proposed by Supplier are objected to and rejected unless expressly assented to in writing by OVH. These terms and conditions shall not be applicable in the event that that OVH and Supplier have negotiated a written agreement to govern the purchase and use of the goods and/or services set forth in this purchase order. In the absence of a negotiated agreement between Supplier and OVH governing the purchase and use of the goods and/or services set forth in this purchase order, however, these terms and conditions shall control (the purchase order and these terms and conditions, collectively, comprise the ‘’Agreement’’).
- Invoicing & Payment. All amounts due under the Agreement shall be set forth in written invoices provided by Supplier to OVH. Each invoice shall provide an itemized list of goods to be purchased and/or services to be performed (with reasonable detail) and expenses, if any, which have been preapproved by OVH for reimbursement to Supplier. OVH will pay invoices within ninety (90) days from the date of invoice (“Due Date”), except for those portions of any invoice that OVH disputes in good faith. OVH will notify Supplier in writing of any such dispute (“Dispute Notice”) within sixty (60) days of receipt of Supplier’s invoice; provided, however, that failure of OVH to withhold payment or to make any such notification shall not be deemed a waiver of any of OVH’s rights under the Agreement. Supplier may charge interest at the rate of 1% per month (or if lower, the highest rate allowable by law) for undisputed payments so long as, after the Due Date, Supplier provides notice that the invoice was not paid and OVH has a thirty (30) day cure period after such notice before interest starts to accrue. In the event that Supplier is in breach of the Agreement, OVH shall have the right, as a non-exclusive remedy, to withhold payment under the Agreement, order, or statement of work.
(a) Retained Rights. Each party shall retain and continue to own all right, title and interest in and to any inventions however embodied, know how, works in any media, software, information, trade secrets, materials, property (including intellectual property) or other proprietary interest that it owned prior to the Agreement, or that it created or acquired independently of its obligations pursuant to the Agreement (collectively, “Retained Rights”). All Retained Rights not expressly transferred or licensed herein are reserved to the respective owner.
(b) Deliverables. Subject to the terms of the Agreement, and upon payment of the applicable fees set forth in the applicable order, Supplier agrees to assign, and hereby assigns, to OVH all intellectual property rights in and to the deliverables and work products created hereunder (“Deliverables”) along with all intellectual property and other proprietary rights therein including without limitation rights in inventions and trade secrets and copyrights (“Intellectual Property Rights”). Supplier agrees to take, at OVH’s cost and expense, all additional actions requested by OVH that are reasonably necessary to assure the conveyance to OVH of all right, title, and interest in, to, and under any Deliverables and the Intellectual Property Rights therein, except that OVH shall not have to pay for any such additional actions if they are needed to convey ownership due to the fault of Supplier. Supplier acknowledges that the Deliverables are Confidential Information of Company, regardless of whether so designated.
Subcontracting. Supplier will not subcontract any portion of the services provided to OVH without OVH’s prior written consent.
- Representations and Warranties by Supplier. Supplier warrants, represents, covenants, and agrees that (i) it is duly organized, validly existing and in good standing under the laws of the state of its incorporation or organization and any state in which it conducts business, that it has all necessary power and has received all necessary approvals to execute and deliver the Agreement, and the individual executing the Agreement on behalf of Supplier has been duly authorized to act for and bind Supplier; (ii) it has the right to furnish the goods, services, equipment, and other materials provided under the Agreement free of all liens, claims, encumbrances and other restrictions, and OVH will be entitled to quietly and peacefully access and use all such the goods, services, equipment, and other materials, subject to and in accordance with the provisions of the Agreement; (iii) neither the goods, services, equipment, or other materials provided by it, directly or indirectly (through its agents or subcontractors), nor the use thereof by OVH, will constitute an infringement, misappropriation, or unlawful use or disclosure of any intellectual property rights or other rights of a third party; (iv) the Deliverables will conform in all material respects with all specifications and requirements discussed and agreed in advance by the Parties and will be provided in a competent, workmanlike manner in accordance with applicable industry standards; (v) it will be solely responsible for its employees, agents, representatives, and approved subcontractors (all of the foregoing, Supplier Personnel”) (including for any claims made by subcontractors against OVH) and will remain fully responsible at all times for providing the goods, services, equipment, and other materials; (vii) it has complied with, and will continue to comply with, all applicable domestic, foreign and local laws and regulations and, will obtain all applicable permits and licenses in connection with its obligations under this Agreement; (viii) any of the goods, services, equipment, and other materials provided by it do not and will not contain and/or transfer to OVH’s computing environment any viruses, disabling code, or similar programs or mechanisms that disrupt, modify, delete, harm or otherwise impede the operation of OVH’s systems; (ix) it will perform its obligations under the Agreement with at least the same level and degree of accuracy, quality, completeness, timeliness, responsiveness and efficiency as it provides to its other customers; and (x) it will apply continuous efforts and resources to resolve any failure, malfunction, defect, problem or non-conformity identified by OVH or otherwise brought to Supplier’s attention.
6. Supplier Personnel.
(a) Supplier shall provide an adequate number of Supplier Personnel who are properly educated, trained, qualified, and capable of performing the tasks assigned to them in a timely and high quality manner. OVH shall have the right to review and approve the qualifications of any Supplier personnel assigned to perform services hereunder. Supplier shall be responsible for all employer obligations toward all Supplier Personnel under all applicable laws and this Agreement.
(b) If OVH determines in good faith that the continued assignment to OVH’s account of one or more of the Supplier Personnel is not in the best interests of OVH, then OVH shall have the right to require that Supplier remove such Supplier Personnel from the OVH account. Subject to the other provisions of this Agreement, Supplier shall promptly remove such Supplier Personnel requested by OVH and, unless otherwise notified by OVH, promptly (but in no event in more than four (4) weeks) replace the Supplier Personnel removed from OVH’s account with replacement Supplier Personnel of equal or superior ability, experience and qualifications. In any event, any request by OVH to remove an individual from OVH’s account shall not be deemed to constitute a termination of such individual’s employment by Supplier and in no event shall OVH be deemed an employer of any such person.
(c) If Supplier replaces or reassigns any Supplier Personnel hereunder, then (i) the proposed replacement Personnel shall be “qualified,” meaning that the proposed replacement Personnel shall possess comparable experience and training as the outgoing Supplier Personnel and (ii) if requested by OVH, the replacement Personnel shall work with the outgoing Personnel during a mutually agreed transition period, the duration of which shall be determined based on the duties and responsibilities of the person to be replaced, and all costs and expenses associated with educating and training the replacement Personnel shall be borne by Supplier. In addition, provided that the outgoing Personnel remains employed by Supplier, such individual shall continue to be available by telephone to answer any project-related questions.
- Indemnification.Supplier shall indemnify, defend, and hold harmless OVH and its officers and directors, employees, agents, and representatives (each an “Indemnified Party”) from and against any damages, costs, attorneys’ fees, penalties, fines, liabilities, or expenses that arise from third party actions or claims against an Indemnified Party (collectively, “Losses”), relating to or arising from: (i) death or injury to persons; (ii) damage to tangible property; (iii) a violation of applicable laws; (iv) any breach or alleged breach of Supplier’s confidentiality obligations; (v) Supplier’s or its representatives’ gross negligence or willful misconduct; or (vi) infringement of any third party’s intellectual property rights (“IP Infringement Claim”); provided however, with respect to any Losses arising from an IP Infringement Claim, Supplier shall not have any liability to OVH under this paragraph to the extent that any infringement or claim thereof is attributable to: (1) the combination, operation or use of a deliverable with equipment or software supplied by OVH where the claim would have been avoided but for such combination, operation or use; (2) compliance with designs, specifications or instructions provided by OVH where the claim would have been avoided but for such compliance; (3) use of a deliverable in an application or environment for which it was not designed or contemplated under the Agreement where the claim would have been avoided but for such use; or (4) modifications of a deliverable by anyone other than Supplier where the claim would have been avoided but for such modification. Supplier may obtain for OVH the right to continue using the allegedly infringing materials or items as provided without infringement, or replace or modify such materials or items so that they become non-infringing; provided, however, such remedies shall not preclude OVH from recovering any other Losses actually incurred by it, including, but not limited to attorneys’ fees, associated with such IP Infringement Claim.
SUPPLIER’S LIABILITY FOR INDEMNIFIED THIRD PARTY CLAIMS.NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT OR ANY OTHER WRITTEN OR ORAL AGREEMENT OR UNDERSTANDING BETWEEN THE PARTIES, ANY DISCLAIMER, LIMITATION OR OTHER PROVISION UNDER THE AGREEMENT OR OTHERWISE WHICH PURPORTS TO CAP, LIMIT, OR RESTRICT SUPPLIER’S LIABILITY SHALL BE DEEMED NULL, VOID AND OF NO EFFECT WITH RESPECT TO SUPPLIER’S INDEMNIFICATION OBLIGATIONS FOR THIRD PARTY CLAIMS AS SET FORTH IN THE PRECEDING PARAGRAPH.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW: (I) OVH WILL NOT BE LIABLE TO SUPPLIER OR ANY OTHER PARTY IN CONNECTION WITH THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, HOWEVER ARISING AND WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING STRICT LIABILITY AND NEGLIGENCE), EVEN IF OVH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY OTHER LIMITED REMEDY; AND (II) OVH’S LIABILITY FOR ANY RECOVERABLE LOSSES OR DAMAGES ARISING UNDER THE AGREEMENT OR WITH RESPECT TO THE GODS AND/OR SERVICES SHALL BE LIMITED (IN THE AGGREGATE FOR ALL CLAIMS) TO THE FEES PAYABLE FOR THE GOODS AND/OR SERVICES PROVIDED HEREUNDER IN THE SIX (6) MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
(a) Supplier agrees that with respect to any business information of OVH which (i) is marked as “confidential,” proprietary” or some similar indication; (ii) is expressly advised by OVH to be confidential through some contemporaneous written means; or (iii) which Supplier should reasonably construe to be confidential information under the circumstances (collectively referred to as "Confidential Information"):
i. to use such Confidential Information only in relation to providing the goods and/or services;
ii. not to disclose any such Confidential Information or any part thereof to a person outside Supplier’s business organization for any purposes unless expressly authorized by OVH and subject to written obligations limiting the disclosure and use of such disclosed Confidential Information;
iii. to limit dissemination of such Confidential Information to persons within Supplier’s business organization who are directly involved in providing the goods and/or services under this Agreement and have a need to use such Confidential Information; and
iv. to safeguard the Confidential Information to the same extent that it safeguards its own confidential materials or data (but not less than reasonable then-current safeguards).
(b) Confidential Information shall not include information that:
(c) Should Supplier be required pursuant to a court order or government authority to disclose Confidential Information of OVH, Supplier shall, (i) at its earliest opportunity, provide written notice to OVH of the required disclosure prior to such disclosure; (ii) where feasible, give OVH a reasonable opportunity to secure a protective order or take other action as appropriate; (iii) use commercially reasonable efforts to assist OVH in obtaining confidential treatment for any Confidential Information required to be disclosed; and (iv) disclose only such Confidential Information of OVH as is required by the court order or governmental authority.
(d) The terms of this “Confidentiality” section shall continue in full force and effect for a period of five (5) years from the date of disclosure of such Confidential Information.
(e) In the event of termination of the Agreement, upon written request of OVH, Supplier shall immediately return OVH’s Confidential Information, or at OVH’s option destroy any remaining Confidential Information and certify that such destruction has taken place.
(f) In the event of an actual or threatened breach of the above confidentiality provisions, OVH will have no adequate remedy at law and will be entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.
(a) In addition to any other termination rights set forth in the Agreement and any other rights at law or equity:
i. If OVH determines that Supplier has materially breached any of the restrictions or obligations set forth in the Agreement or this Agreement and failed to cure such breach within ten (10) business days after receiving written notice thereof from OVH, OVH may immediately terminate the Agreement without further notice or opportunity to cure.
ii. OVH may, without cause or for convenience, terminate the Agreement, or any order form or statement of work under the Agreement upon thirty (30) days written notice to Supplier.
iii. If this Agreement is terminated before all statements of work executed hereunder are terminated or completed, the terms of this Agreement shall remain in full force until the termination or completion of such Statements of Work.
(b) If the Agreement or any order form or statement of work is terminated prior to completion of provision of the goods and/or services, OVH will pay Supplier only for those authorized Services rendered to OVH’s reasonable satisfaction prior to termination and for reimbursable out-of-pocket expenses approved in advance by OVH and accrued prior to the effective date of the termination. To the extent any fees for terminated goods and/or services were paid in advance, OVH shall be entitled to receive a refund of the unused portion of such fees, prorated as of the effective date of termination, within ten (10) business days after termination. Within five (5) days of termination, Supplier shall deliver to OVH, to the extent relevant to goods and/or services affected by such termination, all: (i) work in progress; (ii) OVH property; and (iii) materials containing or embodying OVH Confidential Information or work products.
11. Publicity.Supplier shall not use OVH’s name or logo in identifying OVH as a client of Supplier, except with the express written consent of OVH in each instance, and such consent may be revoked by OVH at any time. Supplier may not, without the express written consent of OVH, divulge the terms of the Agreement or make any public statement about the specifics of the goods and/or services provided hereunder or any dispute relating to the Agreement, except as required by law or regulation or in response to any governmental investigation or inquiry or any subpoena or other discovery process in any litigation.
12. Notices.All notices, consents, approvals, demands, requests or other communications provided for or permitted to be given under any of the provisions of the Agreement will be in writing and will be deemed to have been duly given or served when delivered by hand delivery or when deposited in the U.S. mail by registered or certified mail, return receipt requested, with postage prepaid, or by an overnight delivery service such as Fedex or UPS, or electronically via e-mail with return confirmation, and addressed to the legal or other primary business point of contact or address designated in the Agreement or subsequently designated in writing by a Party.
13. Governing Law and Arbitration. The Agreement shall be governed by, construed and enforced in accordance with the laws of the Commonwealth of Virginia, U.S.A., without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement. Any controversy or claim arising out of, or relating to, this Agreement (including the enforceability or breach thereof) or relating to the goods and/or services shall be finally resolved by arbitration in accordance with the JAMS Streamlined Arbitration Rules & Procedures then currently in effect, by a sole arbitrator. Notwithstanding the foregoing, the arbitrator shall not be authorized to award punitive damages with respect to any such claim or controversy, nor shall any party seek punitive damages relating to any matter under, arising out of or relating to the Agreement or the goods and/or services in any other forum. If any arbitration or court action is commenced by either party, the substantially prevailing party in that arbitration or action is entitled to recover from the other party its attorneys’ fees and costs (including arbitration fees and costs and expert witness fees) incurred in connection therewith. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16, and judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. The entire arbitration shall be conducted and concluded in no later than ninety (90) days after service of the arbitration demand. A written demand for arbitration must be delivered within one (1) year from the date on which the goods and/or service to which the claim relates were provided. Failure to comply with this provision shall be a complete bar to any claim. Unless otherwise agreed by OVH and Supplier, the place of arbitration shall be at the offices of OVH’s legal counsel within thirty (30) miles of OVH’s headquarters in Reston, Virginia.
(a) Coverage Levels. Supplier (and each subcontractor of Supplier with access to OVH data shall obtain and keep in force for the benefit of the Supplier and OVH the following insurance to be issued by insurance carriers with a minimum A.M. Best’s rating of A-: VII, or S&P A, or better, or the equivalent in those jurisdictions that do not recognize such rating classification, and licensed to provide insurance in the jurisdiction in which Supplier’s goods and/or services (for the purposes of this Section, “Service”) are to be provided, with minimum limits as set forth below:
i. Statutory Workers’ Compensation and or Employer’s Liability as required by state or country law with a minimum limit of $1,000,000 each accident / $1,000,000 each disease / $1,000,000 policy limit.
ii. Commercial General Liability (also referred to as civil or public liability insurance outside of the US) including, Product and Completed Operations Liability (maintained in effect for a period of at least ten (10) years after the date of final payment); including contractual liability and deletion of the Care, Custody, Control and Insured vs. Insured exclusions. The following minimum limits for Bodily/Personal Injury and Property Damage and be written on an occurrence basis: $2,000,000 per occurrence, and $5,000,000 general aggregate.
iii. Business Automobile Liability covering all vehicles (owned, non-owned, hired, etc.) used in connection with Service covering Bodily Injury and Property Damage with a minimum limit of $1,000,000 combined single limit per accident.
iv. Professional Errors and Omissions covering the activities of Supplier, with coverage limits of not less than One Million Dollars per claim or per occurrence/One Million Dollars aggregate ($1,000,000/$1,000,000). Policy may be placed either on an “occurrence” basis with full prior acts coverage for claims arising out of Service rendered from the initial commencement of Service through the end of the Agreement, or on a “claims made” basis, providing coverage for claims arising out of Service rendered from the initial commencement of the Service through three (3) years after the completion of the Service without any limitations for prior acts, and which shall provide a one (1) year tail or grace period for claims made after the expiration date of the policy.
v. If applicable, Crime Insurance (also known as Employee Dishonesty insurance/ Fidelity Bond) in an amount of not less than One Million dollars ($1,000,000) covering all Supplier Personnel and Subcontractors and including a Client’s Property endorsement or Insuring Agreement specifying that Employee Theft coverage extends to OVH’s property in the event of any theft of OVH money or property, or money or property of others for which OVH is responsible. Verification that OVH has been included as a Joint Loss payee under the policy must be provided, if requested.
(b) Additional Insureds. OVH (including OVH Affiliates) and its directors, officers, agents and employees shall be named as additional insured under the policies of insurance set forth in Subparagraph 2 above, for any and all purposes arising out of or connected to the Service. Supplier shall upon request provide a Certificate of Insurance from Supplier’s insurance broker to this effect.
(c) Insurance to be Primary. It is the intent of both parties to this Agreement that all insurance purchased by Supplier in compliance with this Agreement, will be primary to any other insurance owned, secured, or in place by OVH (or by any property owner of any OVH facility), which insurance shall not be called upon by Supplier’s insurer to contribute in any way. Supplier shall secure endorsements to this effect from all insurers of such policies.
(d) Verification of Coverage. Upon execution of this Agreement, Supplier shall furnish OVH with certificates of insurance showing coverage required by this clause. OVH reserves the right to require complete, certified copies of all required insurance policies, at any time. For the duration of the Agreement and any mutually agreed upon extended period of time, Supplier shall upon request provide OVH with Certificates of Insurance prior to each subsequent renewal of the evidenced insurance outlined above.
(e) Policy Change or Termination. All policies provided for herein shall expressly provide that such policies shall not be canceled, terminated or altered so that coverage is reduced below that which is required herein without ninety (90) days prior written notice to OVH.
(f) Waiver of Right of Subrogation. Supplier hereby waives any right of recovery against OVH and OVH’s insurers for any loss or damage that is covered by any insurance policy maintained or required to be maintained with respect to the Service.
15. Assignment. The Supplier shall not assign the Agreement or delegate any performance obligations hereunder without obtaining OVH prior written consent. All purported assignments in contravention of this provision shall be void, ab initio.
16. Entire Agreement. Except as expressly set forth in Section 1 above, this Agreement supersedes all prior agreements, written or oral, between Supplier and OVH and will constitute the entire Agreement and understanding between the parties with respect to the subject matter hereof. The Agreement and each of its provisions will be binding upon the parties and may not be waived, modified, amended or altered except by a writing signed by OVH and Supplier.