General:
The Purchase Order is an offer by YPO, Inc. (“Buyer”) to the seller listed on the accompanying Purchase Order (“Seller”) and acceptance is limited to its provisions without additions, deletions, or other modifications. Buyer will not be responsible for goods or services delivered without issuance of its authorized Purchase Order. In order to enter into the Purchase Order, Seller must agree to these Purchase Order Terms & Conditions.
1. Acceptance.
This Purchase Order is limited to the terms and conditions: (i) specified herein; (ii) specified on the face of the Purchase Order; and (iii) if applicable, specified in Buyer’s written agreement with Seller. Acceptance of all or part of the goods or services shall not (a) waive Buyer’s right to cancel or return all or any portion of the goods or services that do not conform to the Purchase Order; (b) bind Buyer to accept future shipments of goods or services; or (c) preclude Buyer from making any claim for damages or breach of warranty. All purchases are subject to inspection and rejection by Buyer notwithstanding prior payment. Rejected goods will be returned at Seller’s expense for transportation both ways and all related labor and packing costs. No goods returned as defective by Buyer shall be replaced by Seller without written permission of an authorized agent of Buyer. Buyer may at any time, by written order, make changes within the general scope of this Purchase Order in any one or more of the following: (i) drawings, designs or specifications; (ii) method of shipment or packing; and (iii) place of delivery. If any such change causes an increase or decrease in the cost of, or the time required for, the performance of this Purchase Order, Seller may request an adjustment in the price or delivery schedule, or both, and the Purchase Order shall be modified in writing accordingly upon agreement by the parties.
2. Changes to the Purchase Order Terms and Conditions.
Buyer can change these Terms & Conditions at any time. Buyer will notify Seller of such change by posting the amended terms on the YPO website. It is the Seller’s responsibility to review these Terms & Conditions periodically.
3. Compliance with Laws.
Seller warrants to Buyer that the goods and services shall be provided, manufactured, shipped, stored, and otherwise handled in compliance with all applicable laws, regulations, and industry standards. Seller makes all warranties contained in the Uniform Commercial Code.
4. Title.
Title conveyed to Buyer by Seller shall be good and merchantable and its transfer rightful. The goods and services shall be delivered free and clear of any lien, security interest, claim or encumbrance.
5. Warranties.
Seller warrants that the goods or services delivered, the packaging, labeling and sorting thereof, any installation, repair, and maintenance of goods, and any other performance pursuant to this Purchase Order, will: (i) be free of infringement of property rights of third parties, including without limitation, any patent, trademark, trade name, copyright or right of publicity, or misappropriate any trade secret or violate any license or any other rights; (ii) be free from defects in material and workmanship, be of even kind and quality and run without variation; and (iii) be of grade and performance in conformity with all specifications, blueprints, designs, drawings, samples, models, descriptions, instructions, and other items referred to in this Purchase Order. Seller also warrants that the goods or services to be delivered hereunder were produced incompliance with all applicable requirements of the Fair Labor Standards Act of 1938 as amended, including specifically Sections 206, 207, 212 and 215, and all regulations and orders of the U.S. Department of Labor issued under Section 14 thereof. Seller shall maintain, solely at Seller’s cost and expense, all licenses, permits, approvals, and the like necessary to conduct its business and perform its obligations under this Purchase Order.
6. Inspection.
Buyer shall have the right to inspect and test the goods or services ordered at any time notwithstanding any prior payment or inspection. Defective goods or services not in compliance with Buyer’s drawings, specifications or standards may at any time be rejected even though such goods or services may have previously been inspected and accepted. Without limiting any rights it may have, Buyer at its sole option may require Seller, at Seller’s expense to: (i) promptly repair or replace any or all rejected goods and/or services or (ii) refund the fees paid for any or all rejected goods and/or services. All such rejected goods will be held for Seller’s prompt instruction and at Seller’s risk. Rejected goods will be transported for return to Seller or destroyed at Seller’s cost. Nothing contained herein shall relieve in any way Seller from the obligation of testing, inspection, and quality control. Payment for goods or services prior to inspection shall not constitute acceptance thereof and is without prejudice to any claims Buyer may have against Seller or any other party.
7. Insurance Permits and Compliance with Laws.
Seller and/or supplier under subcontract to Seller shall carry adequate policies of insurance to protect Buyer from liability for Seller’s activities under this Agreement, including general liability insurance. Unless otherwise agreed to in writing by the parties, Seller will furnish to Buyer a certificate(s) of insurance evidencing such coverage. Seller shall acquire and maintain in good standing, and at its expense, all permits and licenses required of it by law in the performance of Services. Seller will perform the Services in accordance with all applicable laws.
8. Hold Harmless.
Each party shall defend, indemnify and hold harmless the other from and against all claims, damages, demands, costs or liabilities of third parties, including reasonable attorneys’ fees and expenses, arising from any (i) breach of these Purchase Order Terms and Conditions by the indemnifying party, its employees, or representatives or (ii) personal injury or property damage to the extent caused by the negligent act(s) or omission(s) of the indemnifying party, its employees or representatives. Additionally, Seller shall indemnify, hold harmless and defend, at its expense, against any loss, injury, expense or damage arising from any claim brought against Buyer or its affiliates alleging that use of the services or goods provided by Seller infringes a third person’s copyright, patent, trade secret or other intellectual property right. The indemnified party agrees to give the indemnifying party prompt notice of any such claim, demand or actions and shall, to the extent the indemnified party is not adversely affected, cooperate fully with the indemnifying party in the defense and settlement thereof. The indemnifying party shall control the defense and settlement of any such claim. The indemnified party has the right to, at its own expense and with counsel of its own choosing, take part in any discussions, negotiations, meetings, conferences, appearances, settlement talks, hearings, trials, and other communications related to the subject of this indemnification.
9. Limitation of Liability.
EXCEPT AS ARISING FROM A PARTY’S INDEMNITY OR CONFIDENTIALITY OBLIGATIONS HEREIN, WHERE NO LIMITATION SHALL APPLY, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY PUNITIVE, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR INDIRECT DAMAGES, IN ANY ACTION ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), INTENDED CONDUCT OR OTHERWISE, INCLUDING WITHOUT LIMITATION, DAMAGES RELATING TO THE LOSS OF PROFITS, INCOME, GOODWILL OR REVENUE; AND (B) UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNT OF TOTAL FEES PAID OR PAYABLE TO THE OTHER PARTY UNDER THIS PURCHASE ORDER.
10. Confidential Information.
In connection with the activities contemplated by the Purchase Order, each party may have access to confidential or proprietary technical or business information of the other party, including without limitation (a) proposals, ideas or research related to possible new products or services; (b) financial statements and other financial information; (c) the material terms of the relationship between the parties; (d) the name and identity of any Buyer member and/or the member’s family, or Buyer’s guests; (e) any information or content disclosed or learned by Seller at a Buyer event attended by Seller (including at any Buyer social events connected in any way to the larger Buyer event attended by Seller); and (f) any other material that, by its nature, should reasonably be considered confidential (collectively, “Confidential Information”).
Further, Seller further agrees that all still and video photography using any medium that is taken of Buyer’s members, families, guests or faculty at any Buyer event (the “Buyer Images”), is Buyer’s Confidential Information. Further, Seller and all its employees, contractors, vendors and other associated/related parties agree that they shall not under any circumstances use, publish, distribute, sell, trade or make available any Buyer Images without the prior express written consent of the Buyer’s Chief Marketing Officer. Seller understands that Buyer events (including Buyer social events) are private, and Seller agrees that Seller, its employees, contractors, vendors and other associated/related parties will not mention Buyer, or anything about the Buyer event attended by Seller, its employees, contractors, vendors and other associated related parties (including any Buyer social events connected in any way to the Buyer event attended by Seller) in any medium without Buyer’s express prior written consent, which Buyer may grant in its sole and absolute discretion.
Each party will take reasonable precautions to protect the confidentiality of the other party’s Confidential Information, which precautions will be at least equivalent to those taken by such party to protect its own Confidential Information, which under no circumstances may be less than a reasonable standard of care. Except as required by law, neither party will disclose or make available to a third party the Confidential Information of the other party. Each party’s obligations in this section with respect to any portion of the other party’s disclosed Confidential Information shall terminate if such disclosed Confidential Information: (i) was in the public domain at or subsequent to the time it was communicated to the receiving party (“Recipient”) by the disclosing Party (“Discloser”) through no fault of Recipient (although this exception does not apply to personally identifiable information); (ii) was rightfully in Recipient’s possession free of any obligation of confidence at or subsequent to the time it was communicated to Recipient by Discloser; (iii) was developed by employees or agents of Recipient independently of and without reference to any information communicated to Recipient by Discloser; or (iv) was communicated by Discloser to an unaffiliated third party free of any obligation of confidence. If either party is required to disclose the other’s Confidential Information in response to a valid order by a court or other governmental body, or otherwise as required by law, then such disclosure may be made without liability, provided that the owner of the Confidential Information shall, to the extent legally permissible, be promptly notified of such requirement prior to the disclosure of any Confidential Information and both parties will stipulate to any orders necessary to protect said information from public disclosure. This provision shall survive any termination or expiration of the Purchase Order.
11. Non-Solicitation, Promotion and Sales.
Seller and Seller’s employees, agents, and representatives shall not, without Buyer’s prior written consent, (a) approach, contact, or solicit any Buyer member during the term of this Agreement or during the during the performance by Seller under this Purchase Order with the intent to sell any product or service to a Buyer member or a Buyer member’s company; (b) approach, contact, or solicit any Buyer member after the performance by Seller under this Purchase Order with the intent to sell any product or service to a Buyer member or a Buyer member’s company using any information gathered by Seller in connection with Seller’s performance under this Purchase Order; (c) use any trademark, service mark, trade name, logo, or other intellectual property of Buyer to advertise, promote, or sell any product or service. For the avoidance of doubt, and notwithstanding the foregoing restriction, Seller may enter into a transaction with a Buyer member or a Buyer member’s company in connection with a solicitation or promotion of any product or service arising from Seller’s performance under the Purchase Order, provided that the Buyer member or the Buyer member’s company, as applicable, initiated the transaction or Seller has a documented established business relationship with the Buyer member or the Buyer member’s company prior to performance under the Purchase Order.
12. Force Majeure.
If the performance of any obligation, in whole or in part, by a party under this Agreement is prevented, restricted, interfered with, or becomes commercially impractical due to causes beyond the reasonable control of the party, including, but not limited to, acts of God, acts of terrorism, civil disorder, industrial disputes, natural disaster, public health risk, governmental action, interruption or curtailment of commercial or public transport, or the issuance of a travel advisory, travel warning, travel alert, or public health alert by a governmental or internationally-recognized organization (e.g., United States Department of State, World Health Organization, United Kingdom Foreign & Commonwealth Office) during the six-month period prior to a Buyer’s event that impacts the event (each or in combination a “Force Majeure Event”), then the impacted party will be excused from such performance due to such prevention, restriction, interference, or commercial impracticality. If a Force Majeure Event results in the prevention of, restriction or inference with, or commercial impracticality of, Buyer’s event, Buyer may terminate this Purchase Order in whole or in part without penalty upon written notice and Seller shall refund all monies paid by Buyer within thirty (30) days of such notice. If Buyer decides to hold its event despite such circumstances, Seller shall waive any fees or penalties related to a reduced-size event.
Payment Terms:
13. Price.
The price for goods and services ordered hereby (the “Price”) shall be the price stated on the face of the Purchase Order. The Price is inclusive of all sales, use, value added, general services, or other transactional taxes that Seller is directed to collect from Buyer by an authorized taxing authority (“Applicable Taxes”). Further, Price is inclusive of freight, all packaging and handling, transportation, and insurance unless explicitly indicated on the face of this Purchase Order or agreed to in writing by Buyer.
14. Taxes.
Any tax, tariff or duty which is imposed upon Seller by any governmental authority and included by the Seller in the price shall be separately stated on Seller’s invoice(s).
15. Delivery.
Unless designated otherwise: (i) For Domestic Orders: all deliveries are F.O.B. Origin with Prepay & Add freight costs and (ii) For International Orders: all deliveries are Delivered Duty Paid as defined by Incoterms from time to time. For both domestic and international orders, all risk of loss shall remain with Seller until goods and services have actually been received and accepted by Buyer at the applicable destination according to the terms and conditions of this Purchase Order. The goods or services ordered must be received no later than the delivery date specified.
16. Quantities.
Quantities of goods or services ordered may not be changed without the prior written approval of Buyer. If the total or any portion of the goods received either exceeds or falls below the quantities ordered, Buyer shall have the right to reject and return any such shipments or portions thereof at Seller’s expense for transportation both ways and all related labor and packing costs.
17. Packaging and Shipping.
All shipping containers shall be packed and packaged to: (i) ensure safe arrival to final destination; (ii) secure the lowest transportation costs; (iii) comply with requirements of common carriers; (iv) meet Buyer’s written instructions; and (v) meet the requirements of all applicable laws, ordinances, rules and regulations. Each package or container shall be marked clearly to show this Purchase Order number, ship date, and name of consignee and consigner. An itemized packing list shall be included in each container.
18. Invoices.
Seller shall issue an invoice only after delivery. Each invoice must be addressed to YPO, Inc. and shall include: (i) the itemized Price; (ii) the Purchase Order number; (iii) Buyer’s part numbers and description; (iv) quantities shipped; (v) a unique identifying invoice number, (vi) the name of the event, program, or project associated with purchase, (vii) payment instructions for ACH, wire transfer, or credit card payment as supported by Seller. All Applicable Taxes payable to Seller must be separately itemized and documented in accordance with the requirements of the applicable taxing authority, VAT Act, or other applicable law. Undisputed amounts shall be paid within 30 days of receipt and acceptance of goods or services and a correct and undisputed invoice. Delays in receipt of goods or services, acceptance of goods or services, or an incorrect invoice will be just cause for Buyer to withhold payment without losing discount privileges. Cash discounts, if any, shall be computed as commencing with receipt of the invoice or goods or services, whichever is later.
Additional Terms:
19. Miscellaneous.
Seller shall not assign the Purchase Order or any rights, nor delegate any duties to any third party and any attempt to do so will be void. This Purchase Order shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Each party is an independent contractor of the other party.
20. Waiver.
A waiver of any term, condition or default of this Purchase Order shall not be construed as a waiver of any other term, condition, or default.
21. Governing Law.
The Purchase Order shall be governed by and interpreted in accordance with the laws of the State of Texas, excluding Texas conflict of law rules. All terms used in this Purchase Order, which are defined in the Uniform Commercial Code as adopted in the State of Texas, shall have the same meaning herein as such code.
22. Entire Agreement.
The Purchase Order Terms and Conditions represents the entire understanding between Buyer and Seller, shall supersede all prior understandings and agreements relating to the subject matter hereof. Notwithstanding the foregoing, the provisions of this Purchase Order will not supersede any provisions of any other previously written agreement(s) that are currently in effect between the parties that govern the provision of the goods or services that are the subject of the Purchase Order.