Purchase Order Terms & Conditions (09-2020)

Acceptance - Agreement

Any conduct by Supplier which recognizes the existence of a contract pertaining to the subject matter hereof shall be deemed an acceptance of the Purchase Order. Such conduct shall include, but not be limited to, Supplier’s written acceptance of the Purchase Order, Supplier’s commencement of work on the goods and services subject to the Purchase Order, or Supplier’s shipment of the goods and services subject to the PURCHASE ORDER. Any acceptance of the Purchase Order is limited to acceptance of the express terms contained herein. Any proposal for additional or different terms or any attempt by Supplier to vary, in any degree, any of the terms of the offer in Supplier’s acceptance (collectively the “Supplier Proposal”), is hereby objected to and rejected. The above notwithstanding, a Supplier Proposal shall not operate as a rejection of the offer, unless such variances relate to the description, quantity, price, or delivery schedule of the goods and services, but it shall be deemed a material alteration thereof and the offer shall be deemed accepted by Supplier without the additional or different terms contained in the Supplier Proposal. For avoidance of doubt, if the Purchase Order shall be deemed an acceptance of a Supplier Proposal, such acceptance is limited to the express terms contained herein. The foregoing notwithstanding, in the event of a conflict with these Purchase Order Terms & Conditions and any written agreement between the parties, the terms of the written agreement will control.

Term and Termination

Term

The term of any SOW will be set forth in the SOW.

Termination for Convenience

D&B may terminate the Purchase Order, or any part herein, for any reason or no reason at all. In the event of such termination, Supplier shall immediately notify its suppliers and subcontractors, if any, to cease all work related to the Purchase Order. Following termination by D&B under this sub-section, Supplier shall be paid: (i) a reasonable termination charge consisting of a percentage of the Purchase Order price based on the percentage of work performed prior to the date of D&B’s notice of termination; and (ii) Supplier’s actual direct costs resulting from termination. Supplier shall not be paid for any work performed after receipt of the notice of termination, or for any costs incurred by Supplier’s suppliers or subcontractors after Supplier’s receipt of the notice of termination.

Termination for Cause

D&B may also terminate the Purchase Order, or any part herein, for cause in the event the Supplier fails to comply with any of the terms and conditions of the Purchase Order. Grounds for termination of the Purchase Order for cause shall include: (i) late deliveries; (ii) delivery of defective products or products which do not conform to the Purchase Order; and (iii) failure to provide D&B, upon request, with adequate assurances of future performance. In the event of termination for cause, D&B shall not be liable to Supplier for any amount and Supplier shall be liable to D&B for any and all damages (including, without limitation, consequential damages) sustained as a result of the breach which gave rise to the termination. If it should be determined that D&B improperly terminated this Purchase Order for cause, such termination shall be deemed a termination for convenience.

Proprietary Information, Confidentiality & Advertising

Supplier shall consider all information furnished by D&B, in connection with the Purchase Order or otherwise, to be confidential (the “Confidential Information”). Supplier shall not disclose any Confidential Information to any other person or use any Confidential Information itself for any purpose other than performing its obligations under the Purchase Order, unless Supplier obtains D&B’s prior written consent to do so. For purposes of the Purchase Order, Confidential Information includes, without limitation, any and all designs, drawings, specifications, or other information furnished by D&B to Supplier in connection with the Purchase Order and all drawings, specifications, documents, or other information prepared by Supplier for D&B in connection with the Purchase Order. Supplier shall not advertise or publish the fact that D&B has contracted to purchase goods or services from Supplier, nor shall any information relating to the Purchase Order be disclosed without D&B’s prior written consent. Unless otherwise agreed in writing, no commercial, financial, technical or other information disclosed in any manner or at any time by Supplier to D&B, its employees, and agents, shall be considered confidential and D&B, its employees, and agents shall have no obligation to hold any such information confidential. Supplier recognizes that D&B’s employees have no authority to accept any information in confidence. Supplier’s obligations under this paragraph shall survive the termination of this Purchase Order. To protect and ensure the security of D&B’s Confidential Information, Supplier shall implement and maintain an information security program, including administrative, technical, and physical security safeguards, that are designed to protect the security and confidentiality of the D&B Confidential Information, including Personal Data, that is furnished pursuant to the Purchase Order. Such program will include commercially reasonable measures to: a) protect the security, confidentiality, and integrity of such Confidential Information; b) protect against unauthorized access to, or use of, such Confidential Information; c) limit access to systems containing such Confidential Information; d) maintain the security of systems containing such Confidential Information; and e) properly dispose of such Confidential Information. Upon the request by D&B, Supplier shall promptly destroy all documents and records containing Confidential Information, without retaining any copies, duplicates, extracts or other reproductions thereof in any form whatsoever.

Warranties

Supplier expressly warrants that all goods or services furnished under the Purchase Order shall: (i) conform to all specifications and appropriate standards; (ii) be new, delivered free and clear from all liens, claims, and encumbrances; (iii) be free from defects in material or workmanship; (iv) conform to any statements made on the containers or labels or advertisements for such goods or services; (v) be adequately contained, packaged, marked, and labeled; (vi) comply with all applicable laws, rules, and regulations; (vii) conform in all respect to samples; and (viii) not infringe any patent, copyright, trade secret, or other proprietary rights of any third party. Inspection, test, acceptance, or use of the goods or services furnished hereunder shall not affect the Supplier’s obligation under the warranty, and such warranties shall survive inspection, test, acceptance, and use of such goods and services by D&B. Supplier’s warranty shall run to D&B, its successors, assigns, customers, and users of any goods or services sold by D&B. Supplier agrees to replace or correct defects in any goods or services not conforming to the foregoing warranty promptly, without expense to D&B, when notified of such nonconformity by D&B, provided D&B elects to provide Supplier with the opportunity to do so. Should the Supplier fail to correct defects in or replace nonconforming goods or services promptly, D&B, after reasonable notice to Supplier, may, on its own or through a third party, make such corrections or replace such goods and services and charge Supplier for the cost incurred by D&B in doing so. Supplier recognizes that D&B may require immediate repairs or reworking of defective goods or services, which may be procured without notice to the Supplier. In such event, Supplier shall reimburse D&B for the costs, delay, or other damages which D&B has incurred. The price for the goods or services being furnished by Supplier hereunder are set forth in the SOW. Supplier warrants that prices shown in the SOW shall be complete, and no additional charges of any type (including, without limitation, any charges for shipping, packaging, labeling, custom duties, taxes, storage, insurance, boxing or cratings) shall be added without D&B’s express written consent. Supplier warrants that: (i) its signatory hereunder, and any of its officers, directors, or principals have not, and will not for the duration of the Purchase Order, become an official or employee of a government (at any level), a political party, or a public international organization (in the event of any such appointment, Supplier will immediately disclose the appointment to D&B); and (ii) it has not and will not give, offer, agree, or promise to give, or authorize the giving, directly or indirectly, of any money or other thing of value to anyone (including a government official or representative of a commercial entity) as an inducement or reward for favorable action, forbearance from action, the exercise of influence, or violation of any duty owed to said person’s employer. ********** OFFICE OF FEDERAL CONTRACT COMPLIANCE PROGRAMS (OFCCP). IF, AND TO THE EXTENT APPLICABLE, EACH OF DUN & BRADSTREET AND SUPPLIER WARRANTS THAT IT 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.

Indemnification

Supplier will indemnify, defend, and hold harmless D&B and its officers, directors, employees, stockholders, agents, representatives, subsidiaries, parents, and affiliates from all claims, damages, assessments, costs, losses, and other expenses, including but not limited to, reasonable attorneys’ fees and costs arising out of or resulting from any claim, demand, suit, action, or other proceeding that arises out of or relates to: (a) any violation of the Purchase Order related to Confidential Information; (b) any claim of infringement or misappropriation of any intellectual property right; or (b) any personal or bodily injury, death, or damage to property.

Status of Parties; Insurance

In the event that Supplier’s obligations hereunder require or contemplate performance of services by Supplier’s employees, agents, or persons under contract to Supplier to be done on D&B’s property, or property of D&B’s customers, the Supplier agrees that all such work shall be done as an independent contractor and that the persons doing such work shall not be considered employees of D&B. Supplier shall maintain all necessary insurance coverage as outlined in Exhibit B – Insurance attached hereto. Supplier agrees to fully comply with D&B’s Partner Code of Conduct which is available at https://www.dnb.com/en-ca/utilities/policies-codes-of-conduct.html

Contractors

Supplier shall remain at all times primarily responsible for the acts and omissions of any subcontractor and shall retain any such liability and responsibility as if said subcontractor’s activities were performed by Supplier. Supplier shall not subcontract any of its obligations hereunder to any competitor of D&B or any affiliate thereof.

Changes

D&B shall have the right at any time to make changes related to the Purchase Order, including changes related to drawings, designs, specifications, materials, packaging time, place of delivery, and method of transportation. If any such changes cause an increase or decrease in the cost, or the time required for the performance, D&B and Supplier shall mutually agree on an equitable adjustment and the PURCHASE ORDER shall be modified in writing accordingly. Supplier agrees to accept any such changes subject to this paragraph.

Inspection/Testing

Payment for the goods and services delivered under the Purchase Order shall not constitute acceptance thereof. D&B shall have the right to inspect such goods or services and to reject any or all of said goods or services which D&B deems, in its sole discretion, defective or nonconforming. Rejected goods or services or goods supplied in excess of quantities called for in the Purchase Order may be returned to Supplier at its expense and, in addition to D&B’s other rights, D&B may charge Supplier for all expenses of unpacking, examining, repacking and reshipping such goods or services. In the event D&B receives goods or services whose defects or nonconformity is not apparent on examination, D&B reserves the right to require replacement of said goods and services as well as payment of damages. Nothing contained in the Purchase Order shall in any way relieve the Supplier from the obligation of testing, inspection, and quality control.

Entire Agreement

The Purchase Order and any documents referenced herein, constitute the entire agreement between the parties. The terms and conditions set forth herein may not be modified except by a writing signed by both D&B and Supplier.

Assignments

Supplier may not assign any of its rights under this Purchase Order, except with the prior written consent of D&B. Any unauthorized assignments of rights by Supplier, whether voluntary or involuntary, by merger, consolidation, dissolution, operation of law, or any other manner, shall be deemed void. For purposes of this Section: (i) a “change of control” is deemed an assignment of rights; and (ii) a “merger” refers to any merger in which a party participates, regardless of whether it is the surviving or disappearing corporation.

Setoff

All claims for money due or to become due from D&B shall be subject to deduction or setoff by D&B by reason of any counterclaim arising in connection with the Purchase Order or any other transaction with Supplier.

Shipment

No waiver of any condition, term, or provision of the Purchase Order shall be deemed to be a waiver of any preceding or succeeding breach of such condition, term, or provision or of any condition, term, or provision hereof. D&B’s failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.

Waiver

Delivery

Time is of the essence to the Purchase Order. If delivery of goods or rendering of services is not completed by the time set forth in the applicable SOW or by the time otherwise promised, D&B reserves the right without liability, and in addition to its other rights and remedies, to: (i) terminate the Purchase Order by notice effective when received by Supplier as to items not yet shipped or services not yet rendered; (ii) purchase substitute items or services elsewhere; and (iii) charge Supplier with any loss or damages incurred.

Announcements

The parties shall keep the existence of this Purchase Order, and the transactions it contemplates, strictly confidential, except as required by law and except as the parties otherwise agree in writing prior to any disclosure.

Independent Entities

Nothing in this Purchase Order shall grant to either party the right to make commitments of any kind for or on behalf of the other party without the prior written consent of the other party. This Purchase Order shall not be construed as a joint venture or partnership, nor shall this Purchase Order be construed as a commitment by either party to enter into either a partnership or partnerships.

Review by Counsel

The parties hereto acknowledge and agree that: (i) each party and its counsel reviewed and negotiated the terms and provisions of this Purchase Order and have contributed to its revision; (ii) the rule of construction to the effect that any ambiguities are resolved against the drafting party shall not be employed in the interpretation of this Purchase Order; and (iii) the terms and provisions of this Purchase Order shall be construed fairly as to all parties hereto and not in favor of or against any party, regardless of which party was generally responsible for the preparation of this Purchase Order.

Severability

If any provision of this Purchase Order is determined to be invalid, illegal, or unenforceable, the remaining provisions of this Purchase Order remain in full force and effect.

Choice of Law

The laws of the State of New Jersey (without giving effect to its conflicts of law principles) govern all matters, including tort claims, arising out of or relating to this Purchase Order, including, without limitation, its validity, interpretation, construction, performance, and enforcement. All disputes arising out of this Purchase Order will be subject to the exclusive jurisdiction of the state and federal courts located in the state of New Jersey and each party hereby consents to the personal jurisdiction thereof.