Actian PO Terms

Actian Corporation Purchase Order Terms and Conditions

DEFINITIONS: The term “Order” shall mean this Purchase Order. The term “Buyer” shall mean Actian Corporation or its subsidiaries, as applicable. The term “Seller” shall mean the party providing products and/or services to Buyer under this Order. The term “Customer” shall mean Buyer’s customer.

ACCEPTANCE: This Order constitutes Buyer’s offer to Seller and is not an acceptance or a confirmation. This Order becomes a binding contract on the terms set forth herein when it is accepted by Seller either by written acknowledgement or the commencement of performance. Seller’s acceptance is limited to the exact terms of this Order. No additional or conflicting terms and conditions stated by Seller in accepting or acknowledging this Order shall be binding upon Buyer unless expressly accepted in writing by Buyer. No revision to this Order shall be valid unless in writing and signed by authorized representative of Buyer.

PACKING: Unless otherwise specified (A) all packing and crating by Seller shall be in compliance with carriers’ tariffs and in suitable containers for protection in shipment and storage, and also shall be in compliance with any state applicable Customer specifications, and (B) the price or prices shall include all charges for Seller’s packing and crating, and for transportation to the f.o.b. point.

INSPECTION: (A) All goods (which term throughout this Order includes, without limitation, raw materials, components, intermediate assemblies, tools, and end products) shall be subject to inspection and test by Buyer and its Customer, if any, (which term throughout this clause shall include, without limitation, the Federal government, including its surveillance and/or regulatory agencies) to the extent practical at all times and places, including the period of manufacture and in any event prior to the final acceptance by Buyer or it Customer. (B) If any inspection or test is made on the premises of Seller or its suppliers, Seller, without additional charge shall provide all reasonable facilities and assistance for the safety and convenience of the inspectors in the performance of their duties. (C) Final acceptance or rejection of the goods shall be made as promptly as practical after delivery, except as otherwise provided in this Order, but failure to inspect and accept or reject goods or failure to detect defects by inspection, shall neither relieve Seller from responsibility for such goods as are not in accordance with the Order requirements nor impose liabilities on Buyer therefor. (D) Seller shall provide and maintain an inspection an process control system acceptable to Buyer and its Customer, if any, covering the goods hereunder. Records of all inspections work by Seller shall be kept complete and be available to Buyer and its Customer during the performance of this Order and for such longer periods as may be specified in this Order or Customer Contract. (E) If any of the goods ordered are found at any time to be defective in material or workmanship or otherwise not in conformity with the requirement of this Order, including any applicable drawings and specifications, Buyer, in addition to such other rights and remedies, as it may have, at its sole discretion many; (i) reject and return such goods at Seller’s expense; or (ii) require Seller to inspect the goods and remove and replace nonconforming goods with goods that conform to this Order. If Buyer elects option (ii) above and Seller fails to promptly make the necessary inspection, removal and replacement, Buyer may at is option inspect and sort the goods and charge Seller the cost thereof. Rejected goods will be returned to Seller at Seller’s risk and expense for refund.

CHANGES: (A) Buyer shall have the right at any time, by a written change notice issued by Buyer to make changes in this Order relating to the goods or services provided. (B) If any such change affects the time for performance, the cost of manufacturing, or the cost of furnishing services, Buyer shall make an equitable adjustment in the Order price or delivery schedule, or both, and the Order shall be modified in writing accordingly. Any claim by Seller for an equitable adjustment must be submitted to Buyer in writing within ten (10) days from the date of receipt by Seller of the notification of a change or of any event thought to constitute a change. Nothing herein contained shall excuse Seller from proceeding with this Order as changed even though a mutually agreed price and/or delivery change has not been reached.

WARRANTIES: Seller warrants that the goods and services provided hereunder will be (A) free of any claim of any nature by a third party and that Seller will convey clear title thereto to Buyer as provided hereunder, (B) of merchantable quality, free from all defects in design, workmanship and materials, and will be fit for the particular purposes for which they are purchased and will be provided in strict accordance with the specifications, samples, drawings, designs or other requirements (including performance specifications) approved or adopted by Buyer, and (C) performed in a professional manner by well qualified individuals and will conform to the standards of professionalism normally expected in the provision of such services. Any attempt by Seller to limit, disclaim, or restrict any such warranties or any remedies of Buyer, by acknowledgment or otherwise, in accepting or performing this Order, shall be null, void, and ineffective without Buyer’s written consent. Said warranties, together with Seller’s service warranties and guarantees, shall inure to the benefit of Buyer, its successors, assigns and Customers. Seller agrees to indemnify Buyer, it’s successors, assigns and Customers from all liability, loss, cost, damage, or expense, including costs and attorney’s fees, which any or more of them may suffer or incur as a result of Seller’s breach of any such warranty or of any other term or condition of this order. Inspection, tests, acceptance and/or payment thereunder shall not relieve Seller from any liability which exists under its warranties or any other term or condition of this Order. The warranties and remedies provided for in this paragraph shall be in addition to any provided by law.

INDEMNIFICATION: If Seller performs work on the premises of Buyer or its Customer, Seller shall take all necessary precautions to prevent the occurrence of any injury to persons (including death) or damages to property during the progress of the work and shall defend and indemnify the Buyer, its successors, assigns and Customers against any claim which may result in any way from any act or omission of Seller, its agents, employees or subcontractors in performance of work hereunder. In the event of such work on the premises of Buyer or its Customer, Seller shall maintain insurance in the following amounts: Comprehensive General Liability (including Contractual Liability coverage insuring the liabilities assumed above) – $1,000,000 per occurrence, $2,000,000 aggregate; Comprehensive Automobile Liability (Bodily injury and Property Damage combined) – $1,000,000 per occurrence, $1,000,000 aggregate; Employer’s liability – $1,000,000 per occurrence and Statutory Worker’s Compensation insurance as required to protect Seller from all claims under any applicable worker’s compensation and occupational disease law. Seller shall furnish to Buyer, prior to beginning work hereunder, a Certificate of Insurance completed by its insurance carrier(s) certifying that the required insurance coverage is in effect and will not be canceled or materially changes without ten (10) days prior written notice to Buyer.

PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHT ASSIGNMENT AND INDEMNITY: Buyer will own all right, title, and interest in and to any and all software, tools, code, specifications, drawings, designs, materials, copyrightable works, processes, techniques, know-how, concepts, inventions, discoveries, improvements, innovations, ideas, and other work product (collectively, “Work Product”) that are made, conceived of, authored, developed, or reduced to practice by Seller, whether individually or jointly with Buyer or others, in connection with the services provided hereunder. For the purposes of, and to the extent permitted by, the copyright laws of the United States of America, the parties hereby agree that such Work-Product shall be considered works made for hire. To the extent that such Work Product is not a work made for hire, Seller hereby assigns and agrees to assign to Buyer all right, title, and interest in and to any and all Work-Product. Seller agrees upon request and without any additional consideration to execute, acknowledge, and deliver to Buyer all assignments and other instruments that Buyer may reasonably request to effectuate the intent this Section. In the event that Buyer shall be unable for any reason to obtain Seller’s signature on any document reasonably requested by Buyer in connection with this Section, Seller hereby irrevocably designates and appoints each of Buyer and its duly authorized officers and agents as Seller’s agent and Seller’s attorney-in-fact to act for and in Seller’s behalf and stead to execute and file any such document and to do all other lawfully permitted acts to further any such purpose with the same force and effect as if executed and delivered by Seller. Seller shall defend, at its sole expense, any suit or proceeding brought against Buyer or its Customers which is based in whole or in part on a claim that any goods or services (including, without limitation, any Work Product resulting from such services), or any part thereof, furnished by Seller under this Order constitutes an infringement of any patent, copyright, trade secret or other proprietary right of a third party. Seller shall pay all damages and costs awarded therein provided Seller is notified promptly in writing and given authority, information and assistance (at Seller’s expense) for the defense of same. In the event that the use of said goods or services, or part thereof, is held to constitute an infringement of any patent, copyright, trade secret or other proprietary right and the use thereof is enjoined; Seller shall, at its own expense, either procure for Buyer the right to continue using such goods or services, replace the same with non-infringing goods or services meeting Buyer’s requirements, or modify the goods or services so as not to infringe upon such third party’s rights. Any modification to the goods or services, however, must be approved in writing by Buyer. If none of the foregoing is possible, Seller shall take back such goods or services and refund to Buyer the purchase price and the transportation and installation costs thereof.

REMEDIES AND TERMINATION: The rights and remedies of the Buyer provided in this Order shall not be exclusive and are in addition to any other rights and remedies provided by law. In addition to any other rights of Buyer to cancel or terminate this Order, Buyer may at its option immediately terminate for convenience all or any part of this Order, at any time and for any reason, by giving written notice to Seller.

Upon such termination, Buyer shall pay to Seller the following amounts without duplication: (A) the Order price for all goods or services which have been completed in accordance with this Order and not previously paid for; and (B) the actual costs of work-in-process and raw materials incurred by Seller in furnishing the goods and services under this Order to the extent such costs are reasonable in amount and are properly allocable or apportionable under generally accepted accounting principles to the terminated portion of this Order; less, however, the reasonable value or cost (whichever is higher) of any goods or materials used or sold by Seller with Buyer’s written consent, and the cost of any damaged or destroyed goods or materials. Buyer will make no payment for finished goods, work-in-process, or raw materials fabricated or procured by Seller in amounts in excess of those authorized in delivery releases nor for any undelivered goods which are in Seller’s stock or which are readily marketable. Payments made under this paragraph shall not exceed the aggregate price payable by Buyer for finished gods which would be produced by Seller under delivery or release schedules outstanding at the date of termination. Within thirty (30) days from the effective date of termination, Seller shall submit a comprehensive termination claim to Buyer with sufficient supporting data to permit Buyer’s audit, and shall thereafter promptly furnish such supplemental and supporting information as Buyer shall request. Buyer or its agents, shall have the right to audit and examine all books, records, facilities, work, material, inventories, and other items relating to any termination claim of Seller.

BUYER CONFIDENTIAL INFORMATION: Seller acknowledges that it will receive Buyer Confidential Information (as defined below) in connection with its performance hereunder. “Buyer Confidential Information” means any information of Buyer, whether now in existence or hereafter developed, disclosed by Buyer to Seller, either directly or indirectly, whether in writing, orally, visually, or electronically that is designated or identified by Buyer as “Confidential,” “Proprietary,” or some similar designation, or that Seller knows, or under the relevant circumstances should know, as being confidential. Buyer Confidential Information includes, but is not limited to, information relating to Buyer’s research, development, design details and specifications, products, software, trade secrets, business and marketing plans, customers, vendors, finances, personnel data, Work Product, and other material or information considered proprietary by Buyer relating to the current or anticipated business or affairs of Buyer which is disclosed directly or indirectly to Seller. In addition, Buyer Confidential Information includes the existence and terms and conditions of this Order and any third party’s proprietary or confidential information disclosed to Seller in the course of providing services or goods to Buyer. Seller agrees to use the Buyer Confidential Information solely for the purpose of performing its obligations hereunder and not for any other purpose whatsoever. Seller will protect the Buyer Confidential Information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination, or disclosure of the Buyer Confidential Information as Seller uses to protect its own confidential information of a like nature. All rights to the Buyer Confidential Information are reserved by Buyer, and Seller will not disclose or disseminate any Buyer Confidential Information to anyone other than its employees and independent contractors who have a need to know such Buyer Confidential Information, provided that such employees and independent contractors are subject to nondisclosure agreements having confidentiality obligations at least as restrictive as the restrictions contained herein. Upon the expiration or termination of the Order, or at any time upon the request of Buyer, all Buyer Confidential Information, together with any and all copies of same as may be authorized and any and all materials incorporating any of the Buyer Confidential Information, in whatever form or media, shall be returned to Buyer or certified destroyed by Seller at Buyer’s election.

SELLER INFORMATION: Any knowledge or information which Seller shall have disclosed or may hereafter disclose to Buyer, and which in any way relates to the goods or services covered by this Order and Buyer’s specifications, shall not, unless otherwise specifically agreed to in writing by Buyer, be deemed to be confidential or proprietary information, and shall be acquired by Buyer free from any restrictions as part of the consideration for this Order.

INSOLVENCY: If Seller ceases to conduct its operations in the normal course of business, including inability to met its obligations as they mature, or if any proceeding under the bankruptcy or insolvency laws is brought by or against Seller, or a receiver for Seller is appointed or applied for, or an assignment for the benefit of creditors is made by Seller, Buyer may terminate this Order without liability, except for deliveries previously made or for goods covered by this Order then completed and delivered in accordance with the terms of the Order.

RELATIONSHIP OF PARTIES: Seller and Buyer are independent contracting parties and nothing in this Order shall make either party the agent or legal representative of the other for any purpose whatsoever, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.

LIMITATION OF LIABILITY: IN NO WAY WILL BUYER BE LIABLE TO SELLER OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER OR NOT BUYER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

COMPLIANCE WITH LAWS: Seller agrees to comply with the applicable provisions of any federal, state or local law or ordinance and all lawful orders, rules and regulations issued thereunder. Seller hereby certifies that it is in compliance with any provisions, representations or agreements or contractual clauses required thereby to be included or incorporated by reference or operation of law in this Order, including the Equal Opportunity clause set forth in 41 CFR chapter 60-1.4, the Affirmative Action Clause regarding Disable Veterans and Veterans of the Vietnam Era set forth in 41 CFR Chapter 60250.4, the requirements for non-segregated facilities set forth in 41 CFR Chapter 60-1.8, the Affirmative Action Clause regarding Handicapped Workers set forth in 41 CFR Chapter 60-741.4, and any other provisions or contractual clauses required by the OFCCP as set forth in 41 CFR Chapter 60, as well as any Executive Orders as now or hereafter issued, amended, or codified.
HEALTH AND SAFETY: If Seller performs work at Buyer’s or Buyer’s Customer’s location, Seller shall, at a minimum, comply with all applicable Federal, state and local health and safety laws and regulations and any health and safety rules of Buyer and/or its Customer.

FORCE MAJEURE: Buyer shall not be liable for delays due to acts of God, acts of governmental authority, acts of public enemy, war, fires, floods, epidemics, strikes, labor troubles, nor causes or contingencies reasonably beyond its control.

RECORDING DEVICES: If Seller performs work at a Buyer location, Seller shall not, without the prior written permission of Buyer, permit the possession or use of recording devices by its employees, agents or subcontractors. For purposes of this clause, recording devices consist of video and photographic cameras, tape recorders and other devices designed to record pictures or sound.

GOVERNMENT PROCUREMENT REGULATION CLAUSES: If this Order is placed or arises under a Government Contract, the Government Contract (or applicable portions of it) will be available for inspection at Buyer’s offices. In that event, this Order includes, and incorporated by reference, all clauses and other contractual provisions which must be included in subcontracts either under the terms of the government Contract or under applicable law, including those not physically incorporated in the government contract, but either referenced or cited therein, or included by operation of law. Where necessary to make the context of these clauses applicable to this Order, in such clauses, the term “Contractor” shall mean “Seller”, the term “Contract” shall mean “Order” and the terms “Government”, “Contracting Officer”, and similar terms shall mean “Buyer” in addition to or in lieu of “Government”, “Contracting Officer”, or the like as the case may require.

TAXES AND SETOFF: Except as may be otherwise provided in this Order, the prices herein include all Federal, state and local taxes applicable to the goods and/or services purchased therein. Buyer shall be entitled to set-off any amount owing at any time from Seller to Buyer against any amount payable at any time by Buyer in connection with this Order.

ASSIGNMENT AND WAIVER: Neither this Order nor any interest, duty or right under it shall be assigned or otherwise transferred by Seller to any third party without the prior written consent of Buyer. Such consent shall not release Seller from its obligations and liabilities. The failure of Buyer at any time to require performance by Seller of any provision of this Order shall in no way affect buyer’s right to require such performance at any time thereafter, nor shall the waiver by buyer of a breach of any provision of this Order constitute a waiver of any succeeding breach of the same or any other provision.

ENTIRE AGREEMENT: This Order, together with the attachments, exhibits or supplements specifically referenced herein, constitutes the entire agreement between Buyer and Seller with respect to the matter contained herein, and supersedes all prior oral or written representations and agreements. This Order and performance hereunder shall be governed by and construed in accordance with the laws of the State of California exclusive of its choice of law provisions. Exclusive jurisdiction and venue for all disputes arising under this Agreement will be in the state and federal courts residing in Santa Clara County, California, and Buyer and Seller agree to submit to the jurisdiction of such courts. If any provision of this Order, or part thereof, shall be invalid or unenforceable, such provision or part shall be deemed severed, and the remainder hereof shall be given full force and effect.