1. APPLICABLE CONTRACT PROVISIONS.
a. “Customer” means the entity issuing the Order, and any affiliates, subsidiaries, successors or assigns thereof. BroadAspect means the person, firm or company to whom the Order is addressed. “Product/Services” means all the products and services to be supplied by BroadAspect under the Order. “Order” means the purchase order issued by Customer for the purchase of the products and services which is a written document which includes the specific installation location and shipping instructions (if applicable) and/or other specifications required by Customer for the Products/Services.
b. These terms and conditions, together with the Order, constitute a commitment by Customer to purchase the Products/Services from BroadAspect pursuant to the terms and conditions described herein.
c. The order shall become an “Agreement” upon acceptance by BroadAspect. BroadAspect shall be deemed to have accepted this order by commencement of performance called for in the Order, by delivery of the Products/Services to Customer, by written acceptance or confirmation of this Agreement, or by any other act or communication constituting legal acceptance, whether or not any such acceptance or confirmation purports to state terms additional to or different from those stated herein. Customer hereby expressly objects to and rejects any such additional or different provisions, and none of such provisions shall be deemed to be a part of this Agreement unless specifically agreed to in writing by Customer.
2. SALE OF PRODUCTS/SERVICES.
a. BroadAspect agrees to sell, transfer and deliver the Products/Services to Customer for the purchase price set forth in the Order, subject to all of the covenants, terms and conditions hereof.
b. Customer agrees to purchase the Products/Services, subject to all of the covenants, terms and conditions hereof, and to pay BroadAspect the purchase price set forth in the Order. Typographical and other clerical errors in the Order are subject to correction. Customer reserves the right at any time to modify the Order upon notice to BroadAspect. Upon such notice, Customer and BroadAspect shall negotiate an equitable adjustment in price and/or time of performance. Customer shall have the right to stop all or part of the work under the Order or cancel any future delivery of any Products/Services upon notice to BroadAspect.
c. BroadAspect agrees to obtain from Customer a purchase order number for any and all purchase orders of goods and/or services. BroadAspect further agrees it will clearly reference the purchase order number on the applicable invoice(s). BroadAspect acknowledges that any invoice submitted to Customer that does not clearly reference Customer’s corresponding purchase order number may be considered invalid by Customer and may result in delayed payment.
3. PURCHASE PRICE AND TERMS OF PAYMENT.
a. Products/Services shipped against this Agreement shall be invoiced at the price set forth in the Order. Unless otherwise specified on the Order, payment of the purchase price shall be made in two installments: sixty (60%) upon execution of order and fourty (40%) percent upon delivery of Product/Services.
b. The purchase price for the Products/Services shall include all taxes, customs duties, customs fees or other governmental charges due with respect to the Products/Services. Customer shall, however, pay for any taxes that it is statutorily required to pay. BroadAspect shall provide Customer with documentation satisfactory to Customer that establishes Customer’s statutory liability to pay such taxes. If BroadAspect fails to provide such documentation, Customer shall not be obligated to pay any such taxes.
4. SHIPMENT, DELIVERY AND ACCEPTANCE.
a. BroadAspect shall deliver the Products/Services to the place designated for shipment by Customer in the Order.
b. Notwithstanding anything in the foregoing to the contrary, title to and risk of loss of the Products/Services shall pass to Customer only upon receipt of the same by Customer.
c. Notwithstanding anything herein to the contrary, Customer shall have a reasonable opportunity to inspect the Products/Services after the same have been delivered to Customer’s premises. Customer’s failure to inspect or reject Products/Services, shall not relieve Customer of its obligations to pay BroadAspect.
5. WARRANTY PROVISIONS.
a. BroadAspect hereby warrants to Customer for lifetime of the products, that they (i) shall be provided in a competent, professional manner; (ii) shall be free from defects and workmanship, and shall be merchantable and fit for their particular purpose; (iii) shall conform to and perform in accordance with all specifications, drawings, samples and other requirements referred to in the Order and provided by Customer so long Product/Service was not damaged by contractor, trades people or customer.
6. DEFAULT.
a. BroadAspect shall be deemed to be in default hereunder if fails to provide the Products/Services specified in the order.
b. Customer shall be deemed to be in default if it does not meet any term of this agreement.
7. INDEMNIFICATION.
a. BroadAspect agrees to indemnify and hold Customer harmless from and against any and all liabilities, costs, losses or expenses, including reasonable attorneys’ fees, incurred or suffered by Customer as a result of or in connection with BroadAspect’s breach of any of its obligations hereunder.
b. BroadAspect agrees to indemnify and hold Customer harmless from and in respect of any damages, losses or expenses which Customer may suffer or incur (including reasonable attorneys’ fees) arising out of, relating to or concerning any claim, action or allegation that any of the Products/Services (or the use of same in an intended manner) infringes any patent or intellectual property rights claimed by any third party; provided that Customer shall notify BroadAspect in writing of any such claim, act or allegation promptly after learning of the same and shall assist and cooperate in the defense or settlement thereof. Such defense or settlement shall be at BroadAspect’s sole expense, and BroadAspect shall pay all damages and costs finally awarded against Customer as a result of any such suit or proceeding.
8. INSURANCE.
a. For the duration of this Agreement, BroadAspect shall secure and maintain in effect, at its own expense, by insurance companies rated A-VII or better by A.M. Best, insurance coverag: commercial general liability (including product liability and completed operations liability) in a sum no less than $5 million per occurrence, automobile liability with a minimum combined single limit of $1 million per occurrence, worker’s compensation in an amount no less than the applicable statutory minimum requirement and employer’s liability in an amount no less than $1 million per occurrence.
9. GENERAL PROVISIONS.
a. BroadAspect shall furnish, at BroadAspect’s expense, all labor, Products/Services, equipment, transportation, facilities and other items that are necessary to meet the Order requirements. BroadAspect must immediately notify Customer whenever BroadAspect has knowledge of an actual or potential delay to the timely performance of the Order. In the event of BroadAspect’s refusal or failure to meet the delivery date(s) specified in the Order, Customer may, without limiting its other rights and remedies, direct expedited routing and charge excess costs incurred thereby to BroadAspect, or cancel all or part of the Order.
b. Customer shall ensure that BroadAspect has access to the the location that the Products/Services will be installed and that the site will be prepared and ready for Products/Services to be installed.
c. This Agreement shall constitute the complete understanding and contract between BroadAspect and Customer with respect to the subject matter hereof and supersedes any prior written or oral understandings with regard thereto. No purported amendment, modification or waiver of any provision of the Agreement shall be binding on Customer unless set forth in a written document signed by an authorized representative of Customer.
d. Neither Party shall assign or subcontract any of its rights or obligations of this agreement without the other Party’s prior written consent.
e. If any provision hereof is held to be unenforceable by the final order of any court of competent jurisdiction, such provision shall be severed herefrom and shall not affect the interpretation or enforceability of remaining provisions hereof.
f. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Virginia, without reference to any conflicts of law principles. Customer hereby consents to the exclusive jurisdiction and venue of the Federal and state courts located in the State of Virginia as the exclusive forum for the resolution of disputes.
g. Customer and BroadAspect acknowledge that they are each independent parties and neither shall be deemed an agent or representative of the other or have authority to bind the other in any manner whatsoever.