Purchase Order Terms and Conditions
Updated: Thursday, June 18, 2020 - 18:10 GMT
THIS AGREEMENT (the “Agreement”) sets forth the terms and conditions that apply to all purchases of goods, services, and/or deliverables by OutSystems from the Supplier by means of a purchase order (a “PO”) issued by OutSystems to the Supplier. Such PO, which is attached to this Agreement is effective upon Supplier’s commencement of performance or the date of Supplier’s signature, whichever is earlier.
NO TERMS OTHER THAN THE AGREEMENT WILL APPLY TO SUPPLIER’S PROVISION OF PRODUCTS, SERVICES OR DELIVERABLES, EXCEPT IF THE PARTIES HAVE EXECUTED A SEPARATE WRITTEN AGREEMENT GOVERNING PRODUCTS, SERVICES OR DELIVERABLES IN WHICH CASE THIS LATTER AGREEMENT WILL PREVAIL.
1. Goods, Services, and Deliverables
1.1 Supplier agrees to perform the services ("Services") and/or provide the goods or deliverables described in a PO (collectively referred to as "Goods"), in accordance with the terms and conditions set forth in this Agreement and on the face of the PO, incorporated herein by reference.
1.2 A PO does not constitute a firm offer and may be revoked at any time prior to acceptance. Upon acceptance of a PO, shipment of Goods or commencement of Services, Supplier shall be bound by the provisions of this Agreement.
1.3 This Agreement may not be added to, modified, superseded, or otherwise altered, except if agreed in writing and signed by an authorized OutSystems representative.
1.4 Any terms or conditions contained in any acknowledgment, invoice, or other communication of Supplier which are inconsistent with the terms and conditions of this Agreement and/or set forth on the PO, are hereby rejected. To the extent that a PO might be treated as an acceptance of Supplier's prior offer, such acceptance is expressly made on condition of assent by Supplier to the terms hereof; shipment of the Goods or beginning performance of any Services by Supplier shall constitute such assent.
1.5 OutSystems hereby reserves the right to reschedule any delivery or cancel any PO issued at any time prior to shipment of the Goods or prior to commencement of any Services. OutSystems shall not be subject to any charges or other fees as a result of such cancellation.
2.1 Unless otherwise specified in the PO, Supplier will deliver Goods DDP (Incoterms 2010), with title and risk of loss transferring from Supplier to OutSystems at the delivery destination.
2.2 When the Supplier is responsible for exporting or importing Goods, Supplier will obtain all authorisations and permits necessary to fulfil all applicable governments’ requirements for the Goods shipment.
2.3 Upon OutSystems request, Supplier will provide OutSystems with any information OutSystems reasonably requests regarding the importation of the Goods.
2.4 Supplier will package Goods according to any instruction OutSystems provides in the PO, and if none are provided with the good commercial practice to ensure safe arrival of the Goods.
2.5 OutSystems reserve the right to refuse any delivery made more than 5 days before the delivery date and Supplier will re-deliver the Goods on the correct date at the Supplier’s expenses. In addition, OutSystems may return to the Supplier, at its expense, any quantity of Goods exceeding that specified in the PO.
2.6 If a Good shipment (or part of a shipment) is likely to be delayed, Supplier will: (1) promptly notify OutSystems in writing and immediately propose a new delivery date, (2) use best efforts to expedite delayed Goods at Supplier's expense, and (3) issue OutSystems a discount or refund on the purchase price for Goods delivered late, unless otherwise agreed by the parties. In addition to other remedies applicable, OutSystems may (a) cancel without liability the applicable PO or portions of the PO for late Good not yet delivered, or (b) cover for late Good by sourcing products from another supplier, at Supplier's reasonable expense.
3. Invoices and Payments
3.1 Supplier will invoice OutSystems upon OutSystems acceptance of the Goods and Services by submitting invoices to OutSystems.
3.2 Except as specifically stated in the PO, Supplier will be responsible for all costs it incurs in connection with providing the Goods or Services, including Personnel's expenses. OutSystems will pay any undisputed portion of an invoice for accepted Goods or Services within 60 business days following the later of: (1) delivery of the Goods or completion of Services, or (2) receipt of a correct invoice by OutSystems accounts payable department. Correct invoices must include PO number, complete bill-to address, Good part numbers and quantities, description of Goods or Services, unit prices, applicable tax or other charges, and extended totals. Supplier will receive no royalty or other remuneration on the production or distribution of any products developed by OutSystems or Suppliers in connection with or based on the Goods or Services provided.
3.3 OutSystems is not obligated to pay any invoice submitted 180 days or more after a Good is shipped or Services are completed.
3.4 In addition to other rights and remedies OutSystems may have, OutSystems may offset any payment obligations to Supplier that OutSystems may incur under the Agreement against any fees owed to OutSystems and not yet paid by Supplier under the Agreement or any other agreement between Supplier and OutSystems.
3.5 If OutSystems initiates an invoice dispute, OutSystems will include a written description of the disputed portion of the invoice. Upon OutSystems request, Supplier will issue separate invoices for undisputed and disputed amounts. Payment of undisputed amounts will not limit OutSystems’ right to object and refuse payment of disputed amounts.
3.6 Supplier shall maintain written or electronic records reflecting the basis for any charges billed in connection with a PO for at least 3 (three) years after Supplier's receipt of OutSystems’ final payment with respect to the PO.
4.1 The amounts to be paid by OutSystems to Supplier do not include taxes. OutSystems is not liable for any taxes that Supplier is legally obligated to pay, including net income or gross receipts taxes, franchise taxes, and property taxes.
4.2 OutSystems will pay Supplier any sales, use or value added taxes it owes due to this Agreement and which the law requires Supplier to collect from OutSystems. If OutSystems provides Supplier a valid exemption certificate, Supplier will not collect the taxes covered by such certificate. Supplier will indemnify and hold OutSystems harmless from any claims, costs (including reasonable attorneys’ fees) and liabilities related to Supplier’s taxes.
4.3 If the law requires OutSystems to withhold taxes from payments to Supplier, OutSystems may withhold those taxes and pay them to the appropriate taxing authority. OutSystems will deliver to Supplier an official receipt for such taxes. OutSystems will use reasonable efforts to minimize any taxes withheld to the extent allowed by law.
OutSystems shall have a reasonable time after receipt of Goods or Service deliverables and before payment to inspect them for conformity to the Agreements and/or PO and applicable specifications and any statements of work signed by an authorized representative of OutSystems. Goods or Services received prior to inspection shall not be deemed accepted until OutSystems has run adequate tests to determine whether the Goods or Services conform thereto. Use of a portion of the Goods or part of the Services for the purpose of testing shall not constitute an acceptance of the Goods or Services. If Goods tendered or Services provided do not wholly conform with the provisions hereof, OutSystems shall have the right to reject such Goods or Services. Nonconforming Goods will be returned to Supplier freight collect and risk of loss will pass to Supplier upon OutSystems’ delivery to the common carrier. Nonconforming Services will, at OutSystems discretion, either be redone or rejected with full refund in 10 (ten) days.
6. Representation and warranties
6.1 Services - Supplier represents and warrants that; i) all Services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by current, good, and sound professional procedures; ii) Services shall be completed in accordance with applicable specifications and any statements of work signed by an authorized representative of OutSystems and shall be correct and appropriate for the purposes stated therein; iii) the performance of Services under this Agreement and/or the PO will not conflict with, or be prohibited in any way by, any other agreement or statutory restriction to which Supplier is bound.
6.2 Goods - Supplier warrants that: i) it has good and transferable title to the Goods and that all Goods provided will be new and will not be used or refurbished; ii) all Goods delivered shall be free from all defects and shall conform to all applicable specifications and any statements of work signed by an authorized representative of OutSystems for a period of fifteen (15) months from the date of delivery to OutSystems or for the period provided in Supplier`s standard warranty covering the Goods, whichever is longer. Supplier hereby agrees that it will make spare or compatible parts available to OutSystems for a period of five (5) years from the date of shipment at Supplier's then current price, less applicable discounts. Additionally, Goods purchased shall be subject to all written and oral express warranties made by Supplier’s agents, and to all warranties provided for by applicable laws. All warranties shall be construed as conditions as well as warranties and shall not be exclusive. Supplier shall furnish to OutSystems its standard warranty and service guarantee applicable to the Goods. All warranties shall run both to OutSystems and to its customers. If OutSystems identifies a warranty problem with the Goods during the warranty period, OutSystems will promptly notify Supplier of such problems and will return the Goods to Supplier, at Supplier`s expense. Within five (5) business days of receipt of the returned Goods, Supplier shall, at OutSystems' option, either repair or replace such Goods, or credit OutSystems' account for the same. Replacement and repaired Goods shall be warranted for the remainder of the warranty period or six (6) months, whichever is longer.
Supplier shall be solely responsible for maintaining adequate health, auto, workers' compensation, unemployment compensation, disability, liability, and other insurance, as is required by law or as is the common practice in Supplier's trades or businesses, whichever affords greater coverage. Upon request, Supplier shall provide OutSystems with certificates of insurance or evidence of coverage before commencing performance under this Agreement. Supplier shall provide adequate coverage for any OutSystems property under the care, custody or control of Supplier or Supplier's Affiliates. The purchase of such insurance shall not satisfy, modify or limit Supplier´s obligations or liability hereunder.
8. Confidentiality, Personal Data, and Data Security
8.1 Supplier and personnel will (a) keep confidential the terms of the Agreement and all non-public and proprietary OutSystems information whether or not marked, and will only use such information to provide Goods and Services under the Agreement and PO, and will not disclose such information except to the extent required by law after giving reasonable notice to OutSystems, if permitted by law; and (b) not use in providing Goods or Services or disclose to OutSystems any materials or documents of another party considered confidential or proprietary unless it has obtained written authorisation from that party and OutSystems.
8.2 If Supplier processes any Personal Data or confidential information as part of performing the Services or providing Goods, Supplier agrees to: (a) comply with the most current Supplier Data Protection Requirements and abide by the Data Protection Agreement available at www.outsystems.com/legal/po-terms-and-conditions/services-provider-data-processing-agreement/, as applicable and (b) for Personal Data Processing, execute a separate addendum supplementing this PO regarding compliance with data protection law, including the General Data Protection Regulation.
8.3 Supplier shall take all appropriate legal, organizational and technical measures to protect against unlawful and unauthorized processing of Personal Data or OutSystems Confidential Information.
Supplier shall maintain reasonable operating standards and security procedures, and shall use its best efforts to secure confidential data through the use of appropriate physical and logical security measures including, but not limited to, appropriate network security and encryption technologies, and the use of reasonable user identification or password control requirements, including multiple-factor authentication, strong passwords, session time-outs, and other security procedures.
If requested by OutSystems at any time during the term of this Agreement, Supplier shall provide OutSystems with a copy of Supplier’s then current security policy. Supplier shall promptly notify OutSystems in the event that Supplier learns or has reason to believe that any person or entity has breached or attempted to breach Seller’s security measures, or gained unauthorized access to Confidential Data (“Information Security Breach”). Upon any such discovery, Supplier will (a) investigate, remediate, and mitigate the effects of the Information Security Breach, and (b) provide OutSystems with assurances reasonably satisfactory to OutSystems that such Information Security Breach will not recur. If OutSystems determines that notices (whether in OutSystems or Supplier’s name) or other remedial measures (including notice, credit monitoring services, fraud insurance and the establishment of a call centre to respond to customer inquiries) are warranted following a Security Breach, Supplier will, at OutSystems request and at Supplier’s cost and expense, undertake the aforementioned remedial actions.
9. Indemnity and Liability
9.1 Supplier will defend, indemnify and hold harmless OutSystems against all claims, demands, loss, costs, damages, and actions for: (a) actual or alleged infringements of any third party intellectual property or other proprietary rights, which arise in connection with the provision of the Goods and/or Services under this Agreement and/or the PO; (b) any claim that, if true, would constitute a breach of personal data or any Supplier warranty contained herein; (c) any act or omission of or failure to comply with applicable laws, rules or regulations by Supplier or Supplier’s agents, employees, or subcontractors; (d) any breach of confidentiality obligations; (e) the negligent or wilful acts or omissions of Supplier or its subcontractors, which results in any bodily injury or death to any person or loss, disappearance or damage to tangible or intangible property; (f) any claims of its employees, affiliated companies or subcontractors regardless of the basis, including, but not limited to, the payment of settlements, judgments, and reasonable attorneys’ fees.
9.2 IN NO EVENT WHETHER AS A BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY OF STATUTE OR OTHERWISE, SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS (WHETHER DIRECT OR INDIRECT) ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
9.3 OUTSYSTEMS’ TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT AND SUPPLIER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM OF ANY TYPE WHATSOEVER SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY OUTSYSTEMS’ GROSS NEGLIGENCE IN AN AMOUNT NOT TO EXCEED THE AMOUNTS PAID UNDER THIS AGREEMENT AND/OR PO DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.
10.1 OutSystems may terminate this Agreement immediately upon written notice to Supplier if Supplier fails to perform or otherwise breaches this Agreement, files a petition in bankruptcy, becomes insolvent, is subject to external administration (or equivalent events under local law) or dissolves.
10.2 In the event of such termination, OutSystems shall pay Supplier for the portion of the Services satisfactorily performed and those conforming Goods delivered to OutSystems through the date of termination, less appropriate offsets, including any additional costs to be incurred by OutSystems in completing the Services. OutSystems may terminate this Agreement or a specific PO for convenience upon ten (10) days' written notice to Supplier. Supplier shall cease to perform Services and/or provide Goods under this Agreement or the specific PO on the date of termination specified in such notice.
10.3 In the event of such termination, OutSystems shall be liable to Supplier only for those Services satisfactorily performed and those conforming Goods delivered to OutSystems through the date of termination, less appropriate offsets.
10.4 Supplier may terminate this Agreement upon written notice to OutSystems if OutSystems fails to pay Supplier within sixty (60) days after Supplier notifies OutSystems in writing that payment is past due. Upon the expiration or termination of this Agreement for any reason: (i) each party will be released from all obligations to the other arising after the date of expiration or termination, except for those which by their terms survive such termination or expiration; and (ii) Supplier will promptly notify OutSystems of all OutSystems confidential information or any work Product in Supplier's possession and, at the expense of Supplier and in accordance with OutSystems’ instructions, will promptly deliver to OutSystems all such OutSystems confidential information and/or work product.
Supplier shall not subcontract, delegate or assign its obligations under this Agreement without OutSystems's prior written consent. If Supplier proposes to subcontract any of its scope of work hereunder, it shall submit to OutSystems the name of each proposed subcontractor and a description of the corresponding proposed scope of work. OutSystems shall have the right to reject any subcontractor, or revoke its prior approval of a permitted subcontractor, which it considers unable or unsuitable to satisfactorily perform the work involved. Supplier shall include in its subcontracts, as flow-down provisions, provisions substantially similar to this Section and those other provisions of this Agreement relating to personnel requirements, confidentiality and representations and warranties. Supplier shall require all permitted subcontractors to carry insurance at levels customary and appropriate for the types and volumes of Goods and/or Services being provided by such subcontractors. Supplier shall remain responsible for obligations, services and functions performed by permitted subcontractors to the same extent as if these obligations, services and functions were performed by Supplier employees. Supplier shall be OutSystems 's sole point of contact. Supplier shall promptly pay for all services, materials, equipment and labor used by Supplier in providing the Goods and/or Services, and Supplier shall keep OutSystems 's premises free of all encumbrances. Supplier shall not enter into any cost-reimbursable contract with any proposed subcontractor without OutSystems 's prior written authorization. All cost-reimbursable subcontracts shall ensure that cost-reimbursable contract will have the right to inspect subcontractor's facilities to ensure the progress of the work hereunder and to audit subcontractor's records and books of account to ensure the applicability, validity and reasonableness of such costs, if such a subcontract is authorized by cost-reimbursable contract.
Neither party may delegate or assign (by operation of law or otherwise) any duties or claims under this Agreement or any part thereof (including any PO connected with this Agreement) without the prior consent of the other party, except that OutSystems may assign this Agreement, related POs or any part thereof to a parent, subsidiary, affiliate or a company into which OutSystems is merged or with which OutSystems is consolidated. This Agreement shall inure to the benefit of and be binding upon OutSystems and Supplier and their respective successors and permitted assigns.
The provisions of this Agreement, which, by their terms, require performance after the termination or expiration or have application to events that may occur after the termination or expiration of this Agreement, will survive the termination or expiration of this Agreement. All indemnity obligations will be deemed to survive the termination or expiration of this Agreement.
14. Force Majeure
Neither party will be liable for any failure to perform, including failure to accept performance of Services or take delivery of the Goods as provided, caused by circumstances beyond its reasonable control including, but not limited to, acts of God, acts of war, government action or accident, provided it promptly notifies the other party and uses reasonable efforts to correct its failure to perform.
If any term (or part of a term) of the Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect. The parties agree that such provision or portion thereof shall be substituted by a provision with an equivalent legal and economic effect.
16. Remedies and No Waiver
If Supplier breaches this Agreement, OutSystems shall have all remedies available by law and at equity. No waiver will be implied from OutSystems conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in writing signed by a duly authorized representative on behalf of the party claimed to have waived.
17. Compliance with laws
In connection with the Agreement, Supplier will comply and will ensure that its Personnel complies, with all applicable laws, directives, and regulations, including anti-bribery laws, conflict minerals laws, employment laws, import/export laws, materials disposal laws, and Data Protection Laws.
18. Governing Law and Jurisdiction
OutSystems entity with which Supplier is contracting under this Agreement, to whom Supplier should direct notices under this Agreement, the governing law applicable to this Agreement, including any lawsuit or disputes arising out of or in connection with it, without giving effect to any choice or conflict of law provision or rule, and which courts can adjudicate any such lawsuit, shall be determined based on where Supplier has its registered offices, in the same way as defined for End-Customers, as defined at www.outsystems.com/legal/governing-law-jurisdiction.