LAST UPDATED: November 25, 2024
1. Applicability.
(a) These terms and conditions of purchase (these “Terms” or “Agreement”) are the only terms which govern the purchase of the goods (“Goods”) and services (“Services”) by Institutional Capital Network, Inc. (together with its affiliates, the “Buyer”) from the seller named on the purchase order issued by Buyer referencing these Terms (the “Purchase Order” with such seller, the “Seller”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and Services covered hereby (the “Comprehensive Agreement”), the terms and conditions of the Comprehensive Agreement shall prevail.
(b) Other than to the extent there is a Comprehensive Agreement, the Purchase Order and these Terms comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Except in the event of a Comprehensive Agreement, these Terms prevail over any of Seller’s general terms and conditions regardless of whether or when Seller has submitted its sales confirmation or such terms. This Agreement expressly limits Seller’s acceptance to the terms set forth herein. Fulfillment of or other performance under this Purchase Order constitutes acceptance of these Terms.
2. Delivery of Goods and Performance of Services.
(a) Seller shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the parties (the “Delivery Date”). If no delivery date is specified, Seller shall deliver the Goods within 10 days of Seller’s receipt of the Purchase Order. If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate this Agreement immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date. Seller shall deliver all Goods to the address specified in the Purchase Order (the “Delivery Point”) during Buyer’s normal business hours or as otherwise instructed by Buyer. Seller shall pack all goods for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be made at Seller’s risk of loss and expense. Delivery shall be made FOB Delivery Point. The Purchase Order number must appear on all shipping documents, shipping labels, invoices, correspondence and any other documents pertaining to the Purchase Order. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point.
(b) Seller shall provide the Services to Buyer as described and in accordance with the dates or schedule set forth on the purchase order and in accordance with the terms and conditions set forth in these Terms.
(c) Seller acknowledges that time is of the essence with respect to Seller’s obligations hereunder and the timely delivery of the Goods and Services, including all performance dates, timetables, project milestones and other requirements in this Agreement.
3. Inspection and Rejection of Nonconforming Goods. Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (a) rescind this Agreement in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at its expense, within 5 days replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Agreement for cause pursuant to Section 14. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller’s obligations under the Agreement, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.
4. Price. The price of the Goods and Services is the price stated in the Purchase Order (the “Price”). Unless otherwise specified in the Purchase Order, the Price includes all expenses, transportation costs to the Delivery Point, insurance, customs duties and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer. Seller shall not be entitled to the reimbursement of any expenses unless Seller has received prior written approval of such expenses by the Buyer.
5. Payment Terms. Seller shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with these Terms. Buyer shall pay all properly invoiced amounts due to Seller within 45 days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller. In the event of a payment dispute, Buyer shall deliver a written statement to Seller listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth in this Section. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under this Agreement notwithstanding any such dispute.
6. Seller’s Obligations Regarding Services. Seller shall:
(a) before the date on which the Services are to start, obtain, and at all times during the term of this Agreement, maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services;
(b) comply with all rules, regulations and policies of Buyer, including, but not limited to security procedures concerning systems and data and remote access thereto, building security procedures and general health and safety practices and procedures;
(c) maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Seller in providing the Services in such form as Buyer shall approve. During the term of this Agreement and for a period of 3 years thereafter, upon Buyer’s written request, Seller shall allow Buyer to inspect and make copies of such records and interview Seller personnel in connection with the provision of the Services;
(d) obtain Buyer’s written prior to entering into agreements with or otherwise engaging any subcontractor to provide any Services to Buyer (each such approved subcontractor or other third party, a “Permitted Subcontractor”). Buyer’s approval shall not relieve Seller of its obligations under the Agreement, and Seller shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Seller’s own employees. Nothing contained in this Agreement shall create any contractual relationship between Buyer and any Seller subcontractor or supplier;
(e) require each Permitted Subcontractor to be bound in writing by the confidentiality provisions of this Agreement[, and, upon Buyer’s written request, to enter into a non-disclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to Buyer; and
(f) ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Seller, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services;
7. Change Orders. Buyer may at any time, by written instructions and/or drawings issued to Seller (each a “Change Order”), order changes to the Services. Seller shall within 5 days of receipt of a Change Order submit to Buyer a firm cost proposal for the Change Order. If Buyer accepts such cost proposal, Seller shall proceed with the changed services subject to the cost proposal and the terms and conditions of this Agreement. Seller acknowledges that a Change Order may or may not entitle Seller to an adjustment in the Seller’s compensation or the performance deadlines under this Agreement.
8. Warranties.
(a) Seller warrants to Buyer that, all Goods will: (i) be free from any defects in workmanship, material and design; (ii) conform to applicable specifications and other requirements; (iii) be free and clear of all liens, security interests or other encumbrances; and (iv) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Buyer;
(b) Seller warrants to Buyer that it shall perform the Services (i) using personnel of required skill, experience and qualifications; (ii) in a professional and workmanlike manner in accordance with best industry standards for similar services; and (iii) in compliance with all laws, rules and regulations applicable to Seller’s business;
(c) Seller warrants that the Deliverables are and shall be Seller’s original work (except for material in the public domain or provided by the Buer) and do not and will not violate or infringe upon the intellectual property right or any other right whatsoever of any person, firm, corporation or other entity; and
(d) the warranties set forth in this Section 11 are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods or Services with the foregoing warranties. If Buyer gives Seller notice of noncompliance pursuant to this Section, Seller shall, at its own cost and expense, within 15 days or such other period agreed to by Buyer in writing, (i) replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer, and, if applicable, (ii) correct or re-perform the applicable Services.
9. Invention Rights.
(a) The Buyer is and shall be the sole and exclusive owner of all right, title and interest throughout the world in the Goods and to all of the results and proceeds of the Services performed under this Agreement (including, without limitation, any designs, writings, drawings, abstracts or other material created or fixed in any tangible medium of expression produced by Seller relating to or arising out of the Services) (collectively, the “Deliverables”), including all patents, copyrights, trademarks, trade secrets and other intellectual property rights therein, including in respect of all derivative works (collectively, “Intellectual Property Rights”). Seller agrees that the Deliverables are hereby deemed a “work made for hire” as defined in 17 U.S.C. § 101 for the Buyer. If, for any reason, any of the Deliverables do not constitute a “work made for hire,” Seller hereby irrevocably assigns to the Buyer, in each case without additional consideration, all right, title and interest throughout the world in and to the Deliverables, including all Intellectual Property Rights therein.
(b) Any assignment of copyrights under this Agreement includes all rights of paternity, integrity, disclosure and withdrawal and any other rights that may be known as “moral rights” (collectively, “Moral Rights”). Seller hereby irrevocably waives, to the extent permitted by applicable law, any and all claims Buyer may now or hereafter have in any jurisdiction to any Moral Rights with respect to the Deliverables.
(c) Upon request of the Buyer, Seller shall promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, as may be necessary to assist the Buyer to prosecute, register, perfect, record or enforce its rights in any Deliverables.
(d) To the extent that any of Seller’s preexisting materials are contained in the Deliverables and Seller retains ownership of such preexisting materials, Seller hereby grants to the Buyer an irrevocable, worldwide, unlimited, royalty-free license to use, publish, reproduce, display, distribute copies of, and prepare derivative works based upon, such preexisting materials and derivative works thereof. The Buyer may assign, transfer and sublicense such rights to others without Seller’s approval.
10. General Indemnification. Seller shall defend, indemnify and hold harmless Buyer, its subsidiaries, affiliates, successors or assigns and its respective directors, officers, shareholders and employees (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the Goods and Services purchased from Seller or Seller’s negligence, willful misconduct or breach of the Terms, including, but not limited to, any and all Losses arising out of or in connection with any claim that Buyer’s or Indemnitee’s use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. Seller shall not enter into any settlement without Buyer’s prior written consent.
11. Limitation of Liability. IN NO EVENT SHALL BUYER BE LIABLE TO SELLER OR TO ANY THIRD PARTY FOR ANY LOSS OF REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL BUYER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO BUYER PURSUANT TO THE APPLICABLE SOW IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
12. Insurance. Seller will, at all times, during the term of this Agreement and one (1) year thereafter, take out and maintain all necessary insurance, at its own expense on terms and for amounts acceptable to the Buyer, including without limitation (a) workers’ compensation insurance; (b) general liability insurance (with a limit of at least $1 million); cyber liability insurance (with a limit of at least $1 million) and professional liability insurance (with a limit of at least $1 million); provided that such insurance limits will be increased to $5 million once fees applicable under this Agreement exceed $1,000,000 in any twelve-month period. Seller must name the Buyer as an additional insured under such policies and provide to the Buyer evidence of the existence of insurance required under this clause at such times as the Buyer may request. Seller shall provide Buyer with 30 days’ advance written notice in the event of a cancellation or material change in Seller’s insurance policy. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Buyer’s insurers and Buyer. To the extent Seller does not have the insurance limits detailed in this Section 12, Seller represents and warrants that it has adequate insurance policies consistent with similarly situated entities in its field that are commensurate with the Good and/or Services being provided to Buyer
13. Compliance with Law. Seller shall comply with all applicable laws, regulations and ordinances. Seller shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Seller assumes all responsibility for shipments of Goods requiring any government import clearance.
14. Termination. In addition to any remedies that may be provided under these Terms, Buyer may terminate this Agreement with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods or the seller’s delivery of the Services, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the Buyer may terminate this Agreement upon written notice to Seller. If Buyer terminates the Agreement for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted and Services accepted by Buyer prior to the termination. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Insurance, Limitations of Liability, Indemnification, Confidential Information and Miscellaneous.
15. Confidential Information. All non-public, confidential or proprietary information of Buyer, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by Buyer in writing. Seller will only use such information as necessary to provide the Goods or Services to Buyer and will protect the confidentiality of such information with the same degree of care it uses to protect its own information of a confidential nature, which in no event will be less than a reasonable degree of care. Upon the earlier of a request from Buyer or termination of these Terms, Seller shall promptly return, or at Buyer’s option, destroy, all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that: (i) is or becomes generally available to the public other than as a result of Seller’s breach of this Agreement; (ii) is obtained by Seller on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; or (iii) Seller establishes by documentary evidence to have been in Seller’s possession prior to the Buyer disclosure hereunder.
16. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
17. Miscellaneous. No waiver by Buyer of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Buyer. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. Buyer may at any time assign or transfer any or all of its rights or obligations under this Agreement without Seller’s prior written consent to any affiliate or to any person acquiring all or substantially all of Buyer’s assets. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party. Seller agrees that the existence of its consulting relationship with the Buyer and the subject matter of any engagement undertaken hereunder shall be treated and regarded as confidential information and, accordingly, without limitation of any other provision herein, Seller shall not directly or indirectly use, divulge or disclose the Buyer as a client or customer of Seller, nor shall Seller discuss, disclose or otherwise comment on the subject matter of any engagement undertaken hereunder in any marketing, promotional or sales material, website, radio, television or any other media program or otherwise, without the prior written consent of the Buyer.
18. Governing Law. This Agreement and all rights and obligations of the parties thereunder shall be governed by and be construed and enforced in accordance with the laws of the State of New York. Seller hereby consents to the jurisdiction of the courts of New York, New York in any action or proceeding which may be brought against it under or in connection with this Agreement, and in the event any such action or proceeding shall be brought against it, Seller agrees not to raise any objection to such jurisdiction or to the laying of the venue thereof in such state.
