KLDiscovery Purchase Order Terms & Conditions
ACCEPTANCE AND TERMS AND CONDITIONS
Supplier's full or partial performance under this Order will constitute acceptance of these Terms. By acceptance of this Order, Supplier agrees to be boundby, and to comply with all these Terms, which include any supplements to it, and all specifications and other documents referred to in this Order. These Terms apply to everything listed in this Order and constitute KLDiscovery Ontrack LLC's (hereinafter referred to as KLDiscovery) offer to Supplier, which KLDiscovery may revoke at any time prior to Supplier’s acceptance. This Order is not an acceptance by KLDiscovery of any offer to sell, any quotation, orany proposal. Reference in this Order to any such offer to sell, quotation, or proposal will not constitute a modification of any of these Terms. Terms and conditions provided by supplier which are different from or in addition to these Terms, whether contained in any acknowledgment of this Order, or with delivery of any goods or services under this Order, or otherwise, will not be binding on KLDiscovery, whether or not they would materially alter this Order, and KLDiscovery hereby rejects them. These Terms may be modified only by a written document signed by duly authorized representativesof KLDiscovery and Supplier.
Time is of the essence of this Order. KLDiscovery may by written notice of default to Supplier (a) terminate all or any part of this Order if Supplier fails to perform, or so fails to make progress as to endanger performance of this Order in accordance with its terms, and does not cure such failure within a period of ten (10) days (or such longer period as KLDiscovery may authorize in writing) after receipt of notice from KLDiscovery specifying such failure; and (b) procure, on such terms as it will deem appropriate, goods or services similar to those so terminated. Supplier will continue performanceof this Order to the extent not terminated and will be liable to KLDiscovery for any excess costs for such similar goods or services. As an alternate remedy, and in lieu of termination for default, KLDiscovery,at its sole discretion, may elect to extend the delivery schedule and/or waive other deficiencies in Supplier's performance, in which case an equitable reduction in the Order price will be negotiated. IfSupplier for any reason anticipates difficulty in complying with the required delivery date, or in meeting any of the other requirements of this Order, Supplier will promptly notify KLDiscovery in writing.If Supplier does not comply with KLDiscovery's delivery schedule, KLDiscovery may utilize expedited delivery services, for which the resultant charges shall be fully prepaid and absorbed by soleresponsibility of the Supplier. The rights and remedies of KLDiscovery provided in this Section 2 will not be exclusive and are in addition to any other rights and remedies provided by the UniformCommercial Code, by law, at equity or under this Order.
This Order must not be filled at a price higher than shown on the face of the Order. In any event, goods and services ordered under this Order will not be billed at a higher price than last quoted or charged without KLDiscovery's specific written authorization. KLDiscovery will be entitled at all times to set off any amount owed at any time by Supplier or any of its affiliates to KLDiscovery or any ofits affiliates against any amount payable at any time by KLDiscovery in connection with this Order. No extra charges of any kind will be allowed unless specifically agreed to in writing by the KLDiscovery.All applicable taxes arising out of transactions contemplated by the Order will be borne by Supplier except as otherwise specified by the parties in writing. If Supplier reduces its prices for the goods and/or services during the term of this Order, Supplier shall reduce the price of such goods and/or services sold hereunder to KLDiscovery according to this Order.
4. INVOICES, PAYMENT, AND TAXES
(a)Invoices shall be rendered on completion of services or delivery of goods and shall contain the Purchase Order Number, item number, description of goods or services, quantities, unit prices, date(s) rendered and total purchase price. Each invoice must refer to the issued purchase order.
(b)Unless otherwise agreed to in a writing signed by the parties, payment shall be made net 60 days from the date of invoice.
All goods must be packaged in the manner specified by KLDiscovery and shipped in the manner and by the route and carrier designated by KLDiscovery as applicable. If KLDiscovery doesnot specify the manner in which the goods must be packaged, Supplier shall package the goods so as to avoid any damage in transit. If KLDiscovery does not specify the manner of shipment, route, or carrier, Supplier shall ship the goods at the lowest possible transportation rates, consistent with Supplier's obligation to meet the delivery schedule set forth in this Order, and Supplier shall maintaininsurance on the goods until they are delivered and accepted by KLDiscovery, in accordance with Paragraph 6.
All goods and services will be subject to inspection and test by KLDiscovery at all times and places, including the period of manufacture and in any event prior to final acceptance. Finalacceptance or rejection of the goods or services will 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 services or failure to detect defects by inspection, will neither relieve Supplier from responsibility for such goods or services as are not in accordance with this Order nor impose liabilities on KLDiscovery for them. KLDiscovery's payment for the goods shall not constitute its acceptance of the goods. Goods rejected and goods supplied in excess of quantities ordered may be returned to the Supplier at Supplier’sexpense. Payment, if any, made for any goods rejected hereunder shall be promptly refunded by Supplier. Supplier will provide and maintain an inspection and process control system acceptableto KLDiscovery covering the goods and services ordered. Records of all inspection work by Supplier will be kept complete and available to KLDiscovery during the performance of this Order and for five (5) years after Supplier's completion of this Order. If any of the goods or services are found at any time to be defective in material or workmanship, or otherwise not in conformity with the requirementsof this Order, including any applicable drawings and specifications, then KLDiscovery, in addition to such other rights and remedies it may have by contract or by law or equity, at its sole discretion may reject and return such goods at Supplier's expense, require Supplier to inspect the goods and remove nonconforming goods and/or require Supplier to replace nonconforming goods or services with conforming goods or services. If Supplier fails to make the necessary inspection, removal, and replacement in a time and manner satisfactory to KLDiscovery, KLDiscovery may at its option inspect and sort the goods; Supplier will pay any related costs.
Supplier represents and warrants that (a) all goods and services are free of any claim of any nature by any third person and that Supplier will convey clear title to KLDiscovery, (b) all services are performed in a manner acceptable in the industry and in accordance with generally accepted standards, are free from all defects, are fit for the particular purposes for which they are acquired,and are provided in strict accordance with the specifications or other requirements (including performance specifications) approved or adopted by KLDiscovery, (c) all goods sold will be of merchantable quality, free from all defects in design, workmanship and materials, and fit for the particular purposes for which they are purchased and that the goods and services are provided in strict accordance with the specifications, samples, drawings, designs or other requirements (including performance specifications) approved or adopted by KLDiscovery, (d) the prices for the goods or services sold to KLDiscovery under this Order are not less favorable than those currently extended to any other customer for the same or similar goods and/or services in equal or lesser quantities, and (e) Suppliershall not act in any fashion or take any action that will render KLDiscovery liable for a violation of any applicable anti-bribery legislation (including without limitation, the U.S. Foreign Corrupt PracticesAct and the U.K. Bribery Act 2010), which prohibits the offering, giving, or promising to offer or give or receiving, directly or indirectly, money or anything of value to any third party to assist it, them or KLDiscovery in retaining or obtaining business or in procuring the goods or services. KLDiscovery's inspection, test, acceptance, or use of the goods shall not affect Supplier's obligations under these warranties. Supplier shall replace or correct, at KLDiscovery's option and at Supplier's cost, defects of any goods not conforming to these warranties. If Supplier fails to correct defects in or replace nonconforming goods within ten (10) days from the date the KLDiscovery notifies Supplier of the defect or defects, KLDiscovery may, on ten (10) days prior written notice to Supplier, either (i) make suchcorrections or replace such goods and charge Supplier for all costs incurred by KLDiscovery, or (ii) revoke its acceptance of the goods in which event Supplier shall be obligated to refund the purchase price and make all necessary arrangements, at Supplier's cost, for the return of the goods to Supplier. All warranties of Supplier herein or that are implied by law shall survive any inspection, delivery,acceptance, or payment by KLDiscovery. Any attempt by Supplier to limit, disclaim, or restrict these warranties or any remedies of KLDiscovery, by acknowledgment or otherwise, in accepting orperforming this Order, will be null, void, and ineffective without KLDiscovery's written consent.
Supplier shall indemnify and hold KLDiscovery and its affiliates harmless and, on KLDiscovery’s request, shall defend each of them from and against any or all third party claims,demands, litigation, or proceedings of whatever kind, whether based upon negligence, breach of express or implied warranty, strict liability, infringement of intellectual property rights, or any othertheory, and from and against all direct, indirect, special, exemplary, incidental or consequential damages of every kind whatsoever, arising out of, by reason of, or in any way connected with the goodsand/or services, the design, manner of preparation, manufacture, construction, completion, or delivery or non-delivery of any goods and/or services by Supplier, any breach by Supplier of any of itsobligations hereunder, or any other act, omission or negligence of Supplier or any of Supplier's employees, workers, servants, agents, subcontractors, or suppliers. Supplier shall, on request, pay orreimburse KLDiscovery or any other party entitled to indemnification hereunder for all costs and expenses, including attorneys' fees, as incurred by KLDiscovery or such other party in connection withany such claim, demand, litigation, proceeding, loss, or damage. In addition, for infringement claims, Supplier will, at its own expense and at KLDiscovery’s option, either procure for KLDiscovery the right to continue using the allegedly infringing item, replace it with a non-infringing equivalent, or remove it and refund the purchase price and the transportation and installation costs thereof.
LIMITATION OF LIABILITY
KLDISCOVERY'S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS ORDER IS LIMITED TO THE AMOUNT PAID BY KLDISCOVERY FOR THE GOODS AND/OR SERVICES.TO THE MAXIMUM EXTENT ALLOWABLE UNDER APPLICABLE LAW, KLDISCOVERY SHALL NOT BE LIABLE UNDER THIS ORDER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, LOST REVENUES EVEN IF KLDISCOVERY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Tangible or intangible property of any nature furnished to Supplier by KLDiscovery or specifically paid for in whole or in part by KLDiscovery, and any replacements or attachments, are the property of KLDiscovery and, unless otherwise agreed in writing by KLDiscovery, will be used by Supplier solely to render services or provide goods to KLDiscovery. Supplier will not substitute any property or take any action inconsistent with KLDiscovery's ownership of such property. While in Supplier's custody or control, such property will be held at Supplier's risk, will be kept insured by Supplier at its expense for its replacement cost with loss payable to KLDiscovery, and will be subject to removal at KLDiscovery's written request, in which event Supplier will prepare such property for shipment and redelivery to KLDiscovery in the same condition as originally received by Supplier, reasonable wear and tear excepted, all at Supplier's expense.
At all times KLDiscovery will have the right to make changes to this Order, including changes to drawings, designs, configurations, specifications, quantities, methods of shipment or packingand delivery schedules or location of delivery. If any such changes cause an increase or decrease in the cost of or the time required for the performance of any work under this Order, an equitable adjustment will be made in the contract price or delivery schedule, or both, and this Order will be modified in writing accordingly. Nothing in this Section, including any disagreement with KLDiscovery asto any claimed adjustment, will excuse Supplier from proceeding with this Order as changed. Any claim by the Supplier for adjustment under this Section 11 must be in a detailed writing and delivered to KLDiscovery within five (5) days after the date Supplier receives notification of change. Any change will be authorized only by a duly executed amendment to this Order. Information, such as technicalinformation or guidance provided to Supplier by representatives of KLDiscovery, will not be construed as a change within the meaning of this Section. If Supplier considers that the conduct of any of KLDiscovery's employees has constituted a change under this Order, Supplier will immediately notify KLDiscovery, in writing, as to the nature of the change and any proposed adjustment, which will then be subject to this Section 11.
12. COMPLIANCE WITH LAWS
Supplier represents and warrants that it is in compliance with and all goods and/or services supplied hereunder have been produced or provided in compliance with the applicable provisions of all federal, state, or local laws or ordinances and all related lawful orders, rules and regulations. Supplier shall comply with any provisions, representations, or agreements, or contractual clauses required to be included or incorporated by reference or operation of law in any Order. Supplier shall be required to obtain and pay for any license, permit, inspection or listing by any public body or certification organization required in connection with the manufacture, performance, completion or delivery of any good and/or service.
Equal Employment Opportunity: Supplier is on notice that Buyer may utilize the goods specified in this order in the transaction of business with the U.S. Government. Supplier is therefore deemed to have assumed the obligation of compliance with Executive Order 11246. This order is subject to the requirements of the Equal Employment Opportunity clause as set forth in 41 CFR 60-1.4(a),41 CFR 60- 300.5, 41 CFR 60-250.5, 41 CFR 60-741.5, and 29CFR Part 471, Appendix A to Subpart A said clauses being herewith incorporated into this order by reference.
This contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
CONFIDENTIAL OR PROPRIETARY INFORMATION
Notwithstanding any document marking to the contrary, any knowledge or information that the Supplier has disclosed or may later disclose to KLDiscovery, and which in any way relates to the goods or services covered by this Order will not, unless otherwise specifically agreed to in writing by KLDiscovery, be deemed to be confidential or proprietary information, and will be acquired by KLDiscovery, free from any restrictions. Supplier will not transmit to KLDiscovery any sensitive personal information, including, but not limited to, identified health information, financial information, social security numbers, biometrics or other personally identified or identifiable information of like sensitivity. Supplier will keep confidential any technical, process, economic, or other information derived from drawings, specifications and other data furnished by KLDiscovery in connection with this Order (in whatever form or format) and will not divulge, export, or use, directly or indirectly, such information for the benefit of any other party without obtaining KLDiscovery's prior written consent. Except as required for the efficient performance of this Order, Supplier will not use such information or make copies or permit copies to be made of such drawings, specifications, or other data without the prior written consent of KLDiscovery. If any reproduction is made with prior consent, this notice will be provided. Upon completion or termination of this Order, Supplier will promptly return to KLDiscovery all materials incorporating any such information and any copies. Supplier agrees that no acknowledgment or other information concerning this Order and the goods or services provided will be disclosed to any third party by Supplier without the prior written agreement of KLDiscovery.
14. WORK ON
If Supplier's work under this Order requires Supplier to be on the premises of KLDiscovery or at KLDiscovery’s direction, Supplier will take all necessary precautions to prevent any injury to persons or damage to property, including following any policies, rules, procedures, insurance or other requirements of KLDiscovery.
Supplier will maintain Comprehensive General Liability (including Contractual Liability coverage insuring the liabilities assumed in these Terms), Automobile Liability and Employers' Liability insurance with limits as reasonably required by KLDiscovery, as well as appropriate Workers' Compensation insurance as will protect Supplier from all claims under any applicable workers' compensation and occupational disease acts. At KLDiscovery's request, Supplier will furnish to KLDiscovery a Certificate of Insurance completed by its insurance carrier(s) certifying that the required insurance coverage is in effect, with waiver of subrogation, naming KLDiscovery as an additional insured, and containing a covenant that such coverage and will not be canceled or materially changed until ten (10) days after prior written notice has been delivered to the KLDiscovery.
KLDiscovery may terminate all or any part of this Order for convenience at any time by written notice to Supplier. Upon such termination, KLDiscovery's liability will be limited to reasonable termination charges mutually agreed by Supplier and KLDiscovery, provided that Supplier must specify any proposed charges in writing within fifteen (15) days after termination. This Order shall terminate automatically, without notice, if Supplier becomes insolvent or the subject of any proceeding under the laws relating to bankruptcy or the relief of debtors. Supplier may terminate all or any part of this Order for convenience at any time upon 90 days’ written notice to KLDiscovery.
(a) NON-ASSIGNMENT: Assignment of this Order or any interest in it or any payment due or to become due under it, without the written consent of the KLDiscovery, will be void. An assignment will be deemed to include not only a transfer of this Order or such interest or payment to another party but also a change in control of Supplier, whether by transfer of stock or assets, merger, consolidation, or otherwise.
(b) TRANSPORTATION: All the prices are established as F.O.B. Destination, unless otherwise specifically provided on the front of this Order. Title and risk of loss shall not pass to KLDiscovery until delivery of the goods to the location designated on the face of this Order and acceptance by KLDiscovery, in accordance with Paragraph 6 above. If KLDiscovery rightfully rejects the goods, receives a nonconforming tender, or revokes its acceptance, risk of loss and title shall be deemed to have remained with Supplier immediately. The responsibility for freight damaged merchandise will be assumed by Supplier. No charges for unauthorized transportation will be allowed. Any unauthorized shipment, which will result in excess transpor tation charges, must be fully prepaid by the Supplier. Supplier will not declare any value on such materials shipped via United Parcel Service, Rail Express, Air Express, Air Freight or Parcel Post. Supplier will release rail or truck shipments at the lowest released valuation permitted in the governing tariff or classification.
(c) ANTICIPATION OF DELIVERY SCHEDULE: Unless otherwise agreed in writing, Supplier will not make material commitments or production arrangements in excess of the amount or in advance of the time necessary to meet KLDiscovery's delivery schedule. Goods shipped to KLDiscovery in advance of schedule may be returned to Supplier at Supplier's expense.
(d) SUPPLIER'S INVENTORY: KLDiscovery will have no obligation to request quotations or place Orders with Supplier, both of which will be in KLDiscovery's sole discretion. KLDiscovery acting in its sole discretion will determine the actual quantity of goods or services to be purchased. The quantity of goods or services, if any, specified in forecasts supplied by KLDiscovery from time to time, or otherwise, is an estimate only. Supplier bears sole responsibility for managing Supplier's raw material, work in process, and inventory, and KLDiscovery will have no liability with respect thereto (whether upon termination of this Order or otherwise) other than in connection with termination as provided in Section 16.
(e) FORCE MAJEURE: KLDiscovery may delay delivery and/or acceptance occasioned by causes beyond its control.
(f) REMEDIES: Each of the rights and remedies reserved to KLDiscovery in this Order shall be cumulative and additional to any other remedies provided in law or equity. No delay or failure by KLDiscovery in the exercise of any right or remedy shall affect any such right or remedy and no action taken or omitted by KLDiscovery shall be deemed to be a waiver of any such right or remedy.
(g) PUBLICITY: Supplier will not use KLDiscovery's name or logo in publicity, advertising, or similar activity, except with KLDiscovery's prior written consent. Supplier will not disclose the existence of this Order or any of its respective terms to any third party without KLDiscovery's prior written consent.
(h) DOCUMENTATION: It is agreed that all technical documentation and other literature necessary for the proper use of the goods or services will be provided to KLDiscovery with the goods or services, unless otherwise directed by KLDiscovery, and its cost is included in the price.
(i) GOVERNING LAW: This Order, these Terms, and all related transactions, will be governed by the laws of the Commonwealth of Virginia, expressly excluding the Uniform Computer Information Transactions Act (“UCITA”) as enacted in Virginia and without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the Commonwealth of Virginia (excluding UCITA) to the rights and duties of the Parties. Any controversy or claim arising out of or relating to this Purchase Order, or the breach thereof, which shall be shall construed in accordance with and governed by the internal laws of the Commonwealth of Virginia, shall be settled by binding arbitration administered in Fairfax County, Virginia, U.S.A. by the American Arbitration Association in accordance with its Arbitration Rules then in effect. Any award from any such arbitration proceeding may be entered as a judgment in any court of competent jurisdiction. In the event of any controversy or claim between KLDiscovery and Supplier, each Party shall bear its own costs in connection therewith, except as otherwise set forth in this Purchase Order.
(j) SURVIVAL: Supplier’s obligations under Sections 6, 7, 8, 9, 10, 12, 13, and 17 (f), (i), (j), (k), (m), and (o) will survive any termination of this Order.
(k) WAIVER; MODIFICATION: No claim or right arising out of a breach of this Order can be discharged in whole or in part by a waiver or renunciation of the claim or right unless supported by consideration and in a writing signed by the aggrieved party. The failure of KLDiscovery to enforce at any time or for any period of time any of the provisions hereof will not be construed to be a waiver of such provisions or of the right of KLDiscovery thereafter to enforce each and every such provision. This Order can be modified or rescinded only by a writing signed by authorized representatives from both parties.
(l) NOTICES: All notices, consents, waivers, and other communications required or permitted to be given pursuant to this Order, shall be in writing and shall be deemed to have been delivered either (i) on the delivery date, if personally delivered, or if delivered by confirmed facsimile or e-mail, (ii) one (1) business day after delivery to any national overnight courier directing delivery on the next business day, receipt requested, or (iii) three (3) business days after deposit in the United States mail, registered or certified mail, return receipt requested, with adequate postage affixed thereto. All notices to KLDiscovery shall be sent to 8201 Greensboro Drive, Suite 300, McLean, VA 22102, to the attention of Finance, and to Supplier at its address as set forth in this Order, or at such other address as either party may designate in writing to the other party.
(m) SEVERABILITY: If any provision of this Order shall be held or deemed to be or shall, in fact, be illegal, inoperative or unenforceable, this provision shall not affect any other provision or provisions contained in this Order.
(n) PARAGRAPH TITLES: The paragraph titles are solely for convenience of reference and shall not affect the meaning or construction of any provision of this Order.