1. GENERAL TERMS
Vendor’s written or oral acceptance, acknowledgement of this Purchase Order, or commencement of performance constitutes Vendor’s acceptance of these terms and conditions. Any terms different from or in addition to the terms of the Purchase Order, whether communicated orally or contained in a written correspondence shall not form a part of the Purchase Order, even if Vendor purports to condition its acceptance of the Purchase Order on Abacus’s agreement to such different or additional terms. The Purchase Order does not constitute a firm offer within the meaning of O.C.G.A. § 11-2-205, and may be revoked at any time prior to acceptance. Notwithstanding the foregoing, if a master agreement covering procurement of the Work described in the Purchase Order exists between Vendor and Abacus, the terms of such master agreement shall prevail over any inconsistent terms in this Purchase Order.
The following terms shall have the meanings assigned to them.
- 2.1 “Deliverables” means the deliverables specified in the Purchase Order to be delivered on or before the Delivery Date.
- 2.2 “Delivery Date” means the date or dates specified in the Purchase Order by which the Vendor is required to deliver the Work.
- 2.3 “Harmful Code” means any software intentionally designed to (i) disrupt, disable, harm, or impede operation, or (ii) impair operation based on the lapse of time, including but not limited to viruses, worms, time bombs, time locks, drop-dead devices, access codes, security keys, back doors, or trap door devices.
- 2.4 “Intellectual Property Rights” means any and all tangible and intangible: (i) copyrights and other rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and (vi) all registrations, applications, renewals, extensions, continuations, divisions, or reissues of any of the items listed in Section 2.4 (i)-(v).
- 2.5 “Preexisting Materials” means any Intellectual Property Rights or tangible personal property of Vendor or Abacus created before the date of this Purchase Order or outside the scope of this Purchase Order.
- 2.6 “Products” means tangible goods specified in the Purchase Order to be delivered on or before the Delivery Date.
- 2.7 “Services” means the services that Vendor is to perform for Abacus specified in the Purchase Order.
- 2.8 “Subcontractor” means a third party performing Work under an agreement (a “Subcontract”) with Vendor.
- 2.9 “Vendor Personnel” means Vendor’s employees, consultants, agents, independent contractors and Subcontractors.
- 2.10 “Third Party Intellectual Property” means the Intellectual Property Rights of a third party which Vendor uses or incorporates into the Work.
- 2.11 “Work” means the Deliverables, Products and Services specified in the Purchase Order.
- 3.1 Time. Time is of the essence in Vendor’s performance of its obligations under Section 3 of the Purchase Order. Vendor will immediately notify Abacus if Vendor’s timely performance under the Purchase Order is delayed or is likely to be delayed. Abacus’s acceptance of Vendor’s notice will not constitute Abacus’s waiver of any of Vendor’s obligations.
- 3.2 Late Delivery. If Vendor delivers Work after the Delivery Date, Abacus may reject such Work.
- 3.3 Rejected Work. Abacus will hold any Work rejected under this Purchase Order at Vendor’s risk and expense, including storage charges, while awaiting Vendor’s return shipping instructions. Vendor will bear all return shipping charges, including without limitation, insurance charges Abacus incurs on Vendor’s behalf. Abacus may, in its sole discretion, destroy or sell at a public or private sale any rejected Work for which Abacus does not receive return shipping instructions within a reasonable time, and apply the proceeds, if any, first toward any storage charges.
- 3.4 Shipping and Handling. Vendor will preserve, pack, package, and handle the Deliverables and Products so as to protect the Deliverables and Products from loss or damage and in accordance with best commercial practices in the absence of any specifications Abacus may provide. Without limiting the foregoing, Vendor shall observe the requirements of any local laws and regulations relating to hazardous work, including, without limitation, with respect to its accompanying information, packing, labeling, reporting, carriage, and disposal. Vendor will include with each delivery of Products a packing list identifying the Purchase Order number, the Abacus part number for each of the Products (if applicable), a description and the quantity of each of the Products, and the date of shipment.
- 3.5 Delivery Location. Unless Abacus expressly instructs otherwise, Vendor will deliver all Work to Abacus’s office at the address set forth in the Purchase Order.
- 3.6 Risk of Loss. Seller assumes responsibility for all shipping and delivery charges including, without limitation, customs, duties, costs, taxes and insurance. Risk of loss for the Deliverables and Products does not pass to Abacus until acceptance in accordance with Section 6.
4. PRICE AND PAYMENT
- 4.1 Price. Unless otherwise specified in the Purchase Order, the price for the Work includes all taxes and other charges such as shipping and delivery charges, duties, customs, tariffs, imposts and government-imposed surcharges. Vendor will, at Abacus’s request, break-out from the price all such taxes and other charges, in its invoices. Vendor shall use its best efforts to assist Abacus in all legal efforts to minimize the taxes resulting from the performance of this Purchase Order.
- 4.2 Payment. Abacus will pay Vendor the price in accordance with the payment terms set forth in the Purchase Order following the later of: (i) the Delivery Date; (ii) the date of Abacus’s acceptance of all of the Work; or (iii) Abacus’s receipt of a properly prepared invoice. A properly prepared invoice must include the Purchase Order number and, if required in the Purchase Order, Vendor’s certification of conformance of the Work to the requirements. Payment will be in United States Dollars. Abacus may, at any time, set-off any amounts Vendor owes Abacus against any amounts Abacus owes to Vendor or any of its affiliated companies.
5. OWNERSHIP AND LICENSE
- 5.1 Title to Deliverables. Unless otherwise specified in the Purchase Order and except as provided in Section 5.2, Abacus is the sole and exclusive owner of all Deliverables and Vendor irrevocably assigns and transfers to Abacus all of its worldwide right and title to, and interest in, the Deliverables, including all associated Intellectual Property Rights.
- 5.2 Title to Preexisting Materials. Each party owns all right, title, and interest in and to any of its Preexisting Materials. Vendor hereby grants Abacus a perpetual, irrevocable, worldwide, transferable, royalty-free, nonexclusive license, with the right to sublicense and authorize the granting of sublicenses, to use and reproduce Vendor's Preexisting Materials in the Deliverables to the extent necessary for Abacus’s exercise and exploitation of its rights in the Deliverables.
- 5.3 Licensing. Vendor will obtain and assign to Abacus a nonexclusive, royalty-free, worldwide, perpetual, irrevocable, transferable, sub-licensable license to use all Third Party Intellectual Property Rights incorporated into, required to use, or delivered with the Work. Vendor will deliver copies of the above releases and licenses to Abacus upon Abacus’s request.
6. INSPECTION AND ACCEPTANCE
Abacus may reject any or all of the Work which does not conform to the applicable requirements within 10 business days of Vendor’s delivery of the Work. At Abacus’s option, Abacus may (i) return the nonconforming Work to Vendor for a refund or credit; (ii) require Vendor to replace the non-conforming Work; or (iii) repair the non-conforming Work so that it meets the requirements. As an alternative to (i) through (iii), Abacus may accept the non-conforming Work conditioned on Vendor providing a refund or credit in an amount Abacus reasonably determines to represent the diminished value of the non-conforming Work. Abacus’s payment to Vendor for Work prior to Abacus’s timely rejection of such Work as nonconforming will not be deemed as acceptance by Abacus.
Abacus shall have the right at any time to make changes in drawings, designs, specifications, materials, packaging, time and place of delivery, and method of transportation. If any such changes cause an increase or decrease in the cost, or the time required for the performance, an equitable adjustment shall be made and the Purchase Order shall be modified in writing accordingly. Vendor agrees to accept any such changes subject to this paragraph.
8. REPRESENTATIONS AND WARRANTIES
- 8.1 General Warranties. Vendor represents and warrants that: (i) it has the full power to enter into the Purchase Order and to perform its obligations under the Purchase Order; (ii) it has the right and unrestricted ability to assign the Work to Abacus including, without limitation, the right to assign any Work performed by Vendor Personnel and Subcontractors; (iii) the Work, and Abacus’s use of the Work, do not and will not infringe upon any third party’s Intellectual Property Rights, right of publicity or privacy, or any other proprietary rights, whether contractual, statutory or common law; (iv) Vendor will not disclose to Abacus, bring onto Abacus's premises, or induce Abacus to use any confidential or proprietary information that belongs to anyone other than Abacus or Vendor which is not covered by a non-disclosure agreement between Abacus and Vendor; (v) Software supplied by Vendor does not contain any Harmful Code; (vi) Vendor’s Work conforms to Abacus’s specifications, Vendor’s quotation or proposal, and Vendor’s brochures or catalogs, and if none of the foregoing is applicable, then such Work is suitable for the intended use; (vii) it will comply with all applicable local and national laws and regulations pertaining to its performance of its obligations under this Purchase Order.
- 8.2 Warranties Implied by Law. Warranties implied by law in O.G.C.A. §§ 11-2-314 and 11-2-315 in are expressly adopted and incorporated by reference.
- 8.3 Price Warranty. Vendor warrants that the price for the Work is not less favorable than those currently extended to any other customer for the same or similar articles in similar quantities. In the event Vendor reduces its price for an article during the term of this order, Vendor agrees to reduce the price for Abacus correspondingly.
- 8.4 Conflict Minerals Warranty. Vendor warrants that, to its knowledge, no tantalum, tin, tungsten and/or gold ("Conflict Minerals"), contained in any good subject to this order, originated from the Democratic Republic of the Congo or an adjoining country, unless the Conflict Minerals were processed by a facility listed as compliant pursuant to the CFSI Conflict-Free Smelter Program. Vendor agrees to communicate to its Subcontractors its own commitment to responsible sourcing and legal compliance. Vendor agrees to cooperate and work with its Subcontractors in an attempt to ensure traceability of Conflict Minerals at least to smelter or refiner level, to maintain and record all Conflict Minerals traceability documentation for five years, and to provide such documentation to Abacus upon request.
9. ASSIGNMENT AND SUBCONTRACTING
- 9.1 No Assignment or Delegation. Vendor may not assign any of its rights or delegate any of its obligations under the Purchase Order without Abacus’s prior written consent, which Abacus will not unreasonably withhold. Abacus may, at its option, void any attempted assignment or delegation undertaken without Abacus's prior written consent.
- 9.2 Subcontracting. Vendor may not subcontract any of its rights or obligations under the Purchase Order without Abacus’s prior written consent. If Abacus consents to the use of a Subcontractor, Vendor will: (i) guarantee and will remain liable for the performance of all subcontracted obligations; (ii) indemnify Abacus for all damages and costs of any kind, subject to the limitations in Section 12 (Indemnification), incurred by Abacus or any third party and caused by the acts and omissions of Vendor’s Subcontractors’ and (iii) make all payments to its Subcontractors. If Vendor fails to timely pay a Subcontractor for work performed, Abacus will have the right, but not the obligation, to pay the Subcontractor and offset any amount due to Vendor by any amount paid to the Subcontractor. Vendor will defend, indemnify and hold Abacus harmless for all damages and costs of any kind, without limitation, incurred by Abacus and caused by Vendor’s failure to pay a Subcontractor.
- 9.3 Third Party Beneficiaries. To the extent allowed by applicable law, no person who is not a party to Purchase Order shall be entitled to enforce or take the benefit of any of its terms whether as a result of applicable legislation, custom, or otherwise.
10. TERM AND TERMINATION
- 10.1 Term. The Purchase Order will remain in effect until the Work is completed and accepted.
- 10.2 Survival. Any obligations or duties which, by their nature, extend beyond the expiration or termination of the Purchase Order shall survive the expiration or termination of the Purchase Order.
- 10.3 Termination by Abacus. Abacus may terminate this Purchase Order at any time, for no reason or for any reason, upon 15 days written notice to Vendor. Upon receipt of notice of such termination, Vendor will inform Abacus of the extent to which it has completed performance as of the date of the notice, and Vendor will collect and deliver to Abacus whatever Work then exists. Abacus will pay Vendor for all Work performed and accepted through the effective date of the termination, provided that Abacus will not be obligated to pay any more than the payment that would have become due had Vendor completed and Abacus had accepted the Work. Abacus will have no further payment obligation in connection with any termination. Notwithstanding the above, Abacus may immediately terminate the Purchase Order upon written notice to Vendor if there is a change in ownership representing 20 percent or more of the equity ownership of Vendor.
- 10.4 Termination by Either Party. Either party may terminate the Purchase Order immediately by delivering written notice to the other party upon the occurrence of any of the following events: (i) a receiver is appointed for either party or its property; (ii) either makes a general assignment for the benefit of its creditors; (iii) either party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor's relief law, if such proceedings are not dismissed within 60 days; (iv) either party is liquidating, dissolving, or ceasing to do business in the ordinary course; or (v) for any material breach not cured within 30 days of receipt of notice of the breach.
11. CONFIDENTIAL INFORMATION AND PUBLICITY
- 11.1 If Abacus and Vendor have entered into a Mutual Non-Disclosure Agreement (“NDA”) which covers disclosure of confidential information under the Purchase Order, and if the term of the NDA expires before the expiration or termination of the Purchase Order, then the term of the NDA shall be automatically extended to match the term of the Purchase Order.
- 11.2 The parties shall treat the terms, conditions, and existence of the Purchase Order as Confidential Information as defined in the NDA.
- 11.3 Vendor shall obtain Abacus’s written consent prior to any publication, presentation, public announcement, or press release concerning its relationship as a supplier to Abacus.
- 12.1 Definition. As used in this Section 12, a “Claim” is any claim, demand, loss, damage, liability, cost or expense (including professional fees and costs as incurred) for which one party (the “Indemnifying Party”) may be obligated to defend, indemnify and hold the other party (the “Indemnified Party”) harmless.
- 12.2 Indemnity by Vendor. Vendor shall defend, indemnify and hold Abacus harmless from and against any and all Claims as incurred, arising out of or in connection with any (i) act or omission of Vendor (including its Subcontractors) in the performance of the Work; or (ii) any infringement of a third party’s Intellectual Property Rights or any other rights.
- 12.3 Indemnity by Abacus. Abacus shall indemnify and hold Vendor harmless from and against any and all Claims as incurred, arising out of or in connection with: (i) Vendor’s use of Abacus’s products or services in connection with the Work; (ii) Vendor’s use of information or materials provided to Vendor by Abacus; or (iii) infringement a third party’s Intellectual Property Rights or any other rights resulting from Vendor’s adherence to Abacus’s written instructions.
- 12.4 Indemnity by Each Party. Each party will indemnify and hold the other party harmless from and against any and all Claims, as incurred, arising out of any negligent or willful acts or omissions of the Indemnifying Party which results in personal injury (including death) or damage to tangible property (not including lost or damaged data).
- 12.5 Notice. The Indemnified Party will provide the Indemnifying Party with prompt written notice of the Claim and permit the Indemnifying Party to control the defense, settlement, adjustment, or compromise of any Claim. The Indemnified Party may employ counsel at its own expense to assist it with respect to any Claim. The Indemnified Party will have no authority to settle any Claim on the Indemnified Party’s behalf.
- 12.6 Third Party. If a third party enjoins or interferes with Abacus’s use of any Work, then in addition to Vendor’s obligations under Section 12.2, Vendor will use its best efforts to (i) obtain any licenses necessary to permit Abacus to continue to use the Work; (ii) replace or modify the Work as necessary to permit Abacus to continue to use of the Work; or if (i) and (ii) are not commercially reasonable, then (iii) promptly refund to Abacus the amount paid for any Work for which a third party enjoins or interferes with Abacus’s use of the Work.
- 12.7 No Limit to Remedies. Nothing in this Section shall limit any other remedy of the parties.
- 13.1 Limit of Liability. Notwithstanding anything else in the purchase order or otherwise, Abacus will not be liable to vendor with respect to the subject matter of the purchase order under any contract, negligence, strict liability, or other legal or equitable theory for any amounts in excess of the amount Abacus paid to vendor in the six months preceding the event or circumstance giving rise to such liability.
- 13.2 Limit on Indirect Damages. In no event will Abacus be liable to vendor for any incidental, indirect, special, consequential damages or loss of profits arising out of, or in connection with, the purchase order, whether or not Abacus was advised of the possibility of such damage.
- 13.3 Application of Limits. The limitations will apply notwithstanding any failure of essential purpose of any limited remedy provided herein. Nothing in the purchase order limits either party's liability for bodily injury of a person, death, or physical damage to property or any liability which cannot be excluded under applicable law.
Vendor will secure and maintain insurance providing coverage for liabilities to third parties for bodily injury (personal injury) and damage to property in amounts sufficient to protect Abacus in the event of such injury or damage, and will be in compliance with any and all laws, regulations or orders addressing the liabilities of an employer to its employees for injuries and disease suffered in connection with employment. Vendor further will maintain such additional types and limits of insurance as is customary for a company of similar size and similar operations to Vendor in the jurisdiction or jurisdictions in which Vendor’s operations take place.
15. COMPLIANCE WITH LAWS
Without limiting the foregoing, Vendor agrees to abide by the requirements of 41 CFR 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin and require affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status. Vendor’s failure to comply with this provision shall constitute a material breach of this Purchase Order.
16. GOVERNING LAW
The Purchase Order will be construed in accordance with, and all disputes will be governed by, the laws of the State of Georgia, without regard to its conflict of laws rules. The parties specifically waive application of the UN Convention on Contracts for the International Sale of Goods. Vendor irrevocably consents to the personal jurisdiction of the state and federal courts in and for Cobb County, Georgia, and irrevocably waives any claim it may have that any proceedings brought in such courts have been brought in an inconvenient forum.
- 17.1 Notice. Any notice to be given under the Purchase Order will be in writing and addressed to the party at the address stated in the front of the Purchase Order. Notices will be deemed given and effective (i) if personally delivered, upon delivery, (ii) if sent by an overnight service with tracking capabilities, upon receipt; (iii) if sent by fax or electronic mail, at such time as the party which sent the notice receives confirmation of receipt by the applicable method of transmittal; or (iv) if sent by certified or registered mail, within five days of deposit in the mail.
- 17.3 Severability. If any court of competent jurisdiction holds that any provision of the Purchase Order is illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of the Purchase Order will not be affected or impaired, and all remaining terms of this Purchase Order remain in full force and effect, provided that this provision shall not be applied to defeat the intent of the parties.
- 17.4 Waiver. A party’s election not to insist on strict performance of any requirement of the Purchase Order will not be construed to waive any omission or breach, or any other provision of the Purchase Order.
- 17.5 Paragraph Headings. The headings in this Agreement are for convenience or reference and shall not be given effect in the construction or interpretation of this Agreement.