Purchase Order Terms and Conditions
Effective Date: April 5, 2017
Lumen Bioscience, Inc. (“Lumen”) hereby retains the supplier (“Supplier”) set forth in the order form into which these terms and conditions are incorporated by reference (including attachments thereto, the “Order Form”) on the terms and conditions hereinafter stated (including terms and conditions that are incorporated herein by reference, the “Purchase Order Terms and Conditions,” and together with the Order Form, the “Purchase Order”) to supply the materials, supplies, items or equipment (the “Products”) and/or perform the services (the “Services”), as the case may be, described in the Order Form. Nothing in this Purchase Order shall be interpreted to prevent Lumen from obtaining from any other third party, or providing to itself, any or all such Products or Services or from ceasing to use Supplier to provide such Products or Services.
In the event of a conflict or inconsistency between any of the provisions of this Purchase Order and any of the provisions of a written agreement between Lumen and Supplier, signed by a authorized executive officer of Lumen (an “Agreement”) covering the subject matter of this Purchase Order, the provisions of the Agreement shall govern and supersede any such conflicting or inconsistent provisions of this Purchase Order. In the absence of an Agreement, this Purchase Order constitutes the entire agreement of the parties with regard to the subject matter, and supersedes all previous written or oral representations, agreements and understandings between Lumen and Supplier and any different or additional terms and conditions. In the event of a conflict or inconsistency between any of the provisions of the Purchase Order Terms and Conditions and any provisions of the Order Form covering the subject matter of this Purchase Order, the provisions of the Purchase Order Terms and Conditions shall govern and supersede any such conflicting or inconsistent provisions of the Order Form.
Supplier’s acceptance of this Purchase Order may be in writing, email, fax, EDI or other manifestation of acceptance such as, but not limited to, Supplier’s initiation of performance, or through Supplier’s provision of any Products or Services covered by this Purchase Order, or through Supplier’s acceptance of any payment made pursuant to this Purchase Order, whichever occurs first. Except to the extent expressly accepted in writing by Lumen, Lumen hereby affirmatively rejects any different or additional terms and conditions proposed by Supplier or contained in any acknowledgement, invoice or other form of Supplier, notwithstanding Lumen’s acceptance or payment for any Products or Services or any similar act of Lumen.
1) PRICE; INVOICING; PAYMENT
(a) Price. The price for the Products shall, as applicable, cover the net weight of the Products, and no extra charge of any kind, including charges for boxing, packaging or crating, shall be allowed unless specifically agreed to in advance in writing by Lumen. The price for Services shall cover all activities required to perform the Services as contemplated in this Purchase Order.
(b) Taxes. The amount of taxes imposed will be separately stated on the Order Form and any related invoice and all amounts shown will include all federal, state and local sales, use, excise and similar taxes applicable to the Products or Services sold or provided under this Purchase Order or the materials used in connection therewith; and Supplier shall pay any and all such taxes, except taxes required by Law (as defined below) to be paid or borne by Lumen. Notwithstanding the foregoing, each of Lumen and Supplier shall bear sole responsibility for all taxes of any kind imposed by a federal, state, local or foreign governmental authority, directly on said party, including, but not limited to, those on, or measured by or referred to as income, gross receipts, financial operations, franchise, profits, license, excise, premium, windfall profits taxes, duties or similar fees, and assessments or charges of any kind whatsoever, together with any interest and any penalties, additions to tax or additional amounts imposed by such governmental authority with respect to that party’s income, operations, employment, property (whether owned, leased or deemed to be owned or leased) or business operations.
(c) Invoice; Payment; Billing Disputes. Unless otherwise specified by Lumen, Supplier shall invoice Lumen for the Products or Services provided under this Purchase Order only after the Products or the Services are received by Lumen. Final payment shall not be made until the Products or Services provided meet the requirements specified in this Purchase Order. Unless otherwise specified by Lumen on the applicable Order Form, payment terms shall be net 45 days after Lumen’s receipt of the applicable invoice submitted in accordance with, and containing any information specified on, the applicable Order Form. All invoices shall be paid with the next scheduled processing run immediately following the invoice due date. Lumen may set off any amount owing from Supplier to Lumen against any amount payable by Lumen. Lumen may withhold payment of any invoiced amounts that it disputes in good faith and the parties shall work in good faith to resolve any such billing disputes. Such withholding of payment during any dispute shall never be the basis of a Lumen default hereunder. Any such billing disputes shall not be cause for Supplier’s nonperformance of Services and/or non-delivery of Products, as the case may be, under this Purchase Order. Payment by Lumen shall not result in a waiver of its rights under this Purchase Order. Further, Supplier shall perform its obligations under this Purchase Order in a manner that meets or exceeds the service levels, if any, set forth in this Purchase Order. If Supplier fails to meet any such service levels, Supplier shall perform a root cause analysis of such failure and shall promptly take corrective actions. Additionally, in the event of any such failure, Lumen shall receive the service level credits, if any, set forth in this Purchase Order. Service level credits shall not be deemed Lumen’s sole and exclusive remedy for any failure by Supplier to achieve service levels. In order to be eligible for reimbursement by Lumen of reasonable of-pocket travel and travel-related expenses incurred by Supplier personnel in providing the Products and/or Services hereunder, all such expenses incurred by Supplier: (i) must have been pre-approved by Lumen in writing prior to the date such expenses are incurred; and (ii) must be in compliance with Lumen’s travel and entertainment guidelines, as supplemented and/or amended from time to time. Supplier will (i) submit truthful and complete documentation supporting, in reasonable detail, the delivery of the Products or the Services performed and any expenses incurred, (ii) maintain true, accurate, and complete invoices, reports, statements, books, and other records, and (iii) secure pre-authorization in writing from Lumen for any extraordinary expenditure.
(d) Most Favored Customer Status. The parties intend that Lumen shall have the status of a "most-favored customer" with respect to matters of pricing, availability, and other terms. Supplier represents and warrants that the prices and other terms provided to Lumen under this Purchase Order are not less favorable than those extended to any of its other customers for similar Product and Services under reasonably similar circumstances and, in the event that Supplier provides any of its other customers with more favorable prices or other terms, Supplier shall immediately provide that more favorable price or other term to Lumen.
2) DELIVERY; CANCELLATION; INSPECTION; ACCEPTANCE
(a) Product Delivery. Supplier shall be responsible for packaging, loading and shipping the Products in accordance with any packaging specifications, shipping methods and other related requirements set forth in this Purchase Order or otherwise communicated in writing to Supplier by Lumen. If no such specifications, methods or requirements are so specified, Supplier shall be responsible for packaging, loading and shipping the Products in a manner sufficient to prevent damage and loss to the Products during shipment. Shipments must equal quantity ordered, unless otherwise agreed to by Lumen in writing. Supplier shall provide a packing list to Lumen (which shall be securely attached to the outside of the package) for all shipments referencing this Purchase Order number. Unless otherwise specifically provided for herein, Supplier shall be responsible for freight and delivery to the destination specified on the applicable Order Form. All freight and delivery charges will be borne by Supplier, unless specifically agreed to in advance, in writing by Lumen. Provided Lumen agrees to accept such freight and delivery charges in advance, the amount allocated for product freight delivery will be separately stated on the Order Form and any related invoice, and all amounts shown will include all packaging, loading and shipping applicable to the Products or Services sold or provided under this Purchase Order or the materials used in connection therewith. Under no circumstances will Supplier include in such charges, or will Lumen bear, additional or charges related to the freight and delivery of covered Products and/or Services, including, but not limited to, fuel surcharges, energy surcharges, or seasonal surcharges, whether originated by Supplier or on behalf of any third party. Notwithstanding any provision in this Purchase Order to the contrary, Supplier shall bear all risks of loss and damage to the Products until final acceptance by Lumen at Lumen’s “ship to” destination specified on the applicable Order Form. Further, Supplier shall bear the same risks with respect to any Products rejected by Lumen or as to which Lumen has revoked its acceptance from the time of such rejection or revocation.
(b) Safety Data Sheets. Supplier shall provide to Lumen all information related to the safety, safe handling, environmental impact, and disposal of the Product including, without limitation, safety data sheets. Supplier shall promptly deliver to Lumen any updates or amendments to the information, including those made to address the United Nations Globally Harmonized System of Classification and Labeling of Chemicals’ requirements, provided pursuant to this Section and any new information relating to the safety, safe handling, environmental impact, or disposal of the Product.
(c) Cancellation. The delivery of Products and/or Services shall strictly comply with the delivery date or delivery schedule, if any, specified by Lumen. If at any time it appears that Supplier will not meet such delivery date or schedule, Supplier shall promptly notify Lumen in writing of reasons for, and the estimated duration of, the delay. If requested by Lumen, Supplier shall ship delayed Products by means to avoid or minimize delay to the maximum extent possible, any added cost to be borne by Supplier. In addition to its other remedies, Lumen reserves the right to cancel all or any part of any Purchase Order for the undelivered Products or unperformed Services if Supplier does not deliver the Products or perform the Services as specified in this Purchase Order.
(d) Changes. Supplier acknowledges and agrees that Lumen may provide Supplier with a written request for changes to the Services and/or Products, as the case may be, from time to time. Lumen and Supplier shall review all such requests to determine the effect, if any, such requested changes may have upon fees payable, delivery schedule, and other terms and conditions of this Purchase Order. After such effects have been assessed, Lumen may decide, in its sole discretion, whether to implement such changes. If Lumen elects to implement such changes, the parties shall enter into a written agreement signed by both parties that describes such changes, which agreement shall constitute an amendment to this Purchase Order.
(e) Inspection; Acceptance of Products and Services. All Products or Services delivered or performed shall be subject to final review, inspection and acceptance by Lumen, notwithstanding any payment or initial inspections. Acceptance of Products and Services shall occur when the Products or Services delivered under this Purchase Order have been inspected by Lumen and determined to meet the requirements specified in this Purchase Order. Lumen shall make such inspection within a reasonable period of time (not to exceed ninety (90) days) after the applicable Products have been delivered or Services completed by Supplier. For the avoidance of doubt, there shall be no time restrictions applicable to Lumen’s provision of notice of rejection of any Product with respect to any latent defects, which shall include any defects that may not be detected by Lumen through standard inspection and testing of a Product sample or that may affect only a portion of Product. If the Products or Services do not meet such requirements, Lumen shall give Supplier detailed written notification of the deficiency or non-conformance and a direction to Supplier to promptly (and in any event within thirty (30) days): (i) repair, replace or re-perform the deficient or non-conforming Products or Services; or (ii) cease all Supplier activities related to Products or Services; and/or (iii) refund to Lumen all fees paid by Lumen hereunder for the deficient or non-conforming Products or Services and those Products or Services that are dependent on such deficient or non-conforming Products or Services. Any such corrected Products or Services shall be subject to the same inspection and acceptance terms provided for in this Section. If Lumen directs Supplier to repair, replace or re-perform the deficient or non-conforming Products or Services and Supplier fails to complete same within 30 days after Lumen’s direction, then Supplier shall refund to Lumen all fees paid by Lumen hereunder for the deficient or non-conforming Products or Services and those Products or Services that are dependent on such deficient or non-conforming Products or Services. Inspection and acceptance of any Products or Services by Lumen shall not affect Supplier’s warranties or Lumen’s remedies the provisions below. The foregoing shall not be construed to limit or exclude any other rights or remedies of Lumen at law or in equity.
3) CONFIDENTIAL INFORMATION
(a) Supplier understands and acknowledges that, in the provision of Services or Products pursuant to this Purchase Order, Lumen may disclose to Supplier or Supplier may otherwise obtain information that Lumen (or any of its subsidiaries, affiliated companies, vendors or customers) considers confidential. Such information may include all information relating to the subject matter of this Purchase Order, whether furnished to or obtained by Supplier or its representatives before, on or after the date of this Purchase Order, in any form, including, but not limited to, written, verbal, visual, electronic or in any other media or manner (“Confidential Information”). Supplier shall exercise the same degree of care for the Confidential Information of Lumen as it uses to protect its own confidential information, but in any event, not less than reasonable care, including, without limitation, the requirements of this Purchase Order. Supplier shall not disclose Confidential Information without the prior express written consent of Lumen to any person or entity not a party to this Purchase Order (other than as required by applicable Law) in any manner whatsoever, in whole or in part, and shall not be used by Supplier other than in connection with the purposes permitted by this Purchase Order.
(b) Upon completion or termination of this Purchase Order, and at Lumen’s written request at any time, Supplier shall promptly return to Lumen or destroy (at Lumen’s election) all copies of all documents or other materials, in whatever form, that contain Confidential Information and are in the possession or under the control of Supplier or any Supplier Personnel and shall certify to Lumen in writing that Supplier has done so in accordance with applicable Laws.
4) ADDITIONAL REPRESENTATIONS, WARRANTIES AND COVENANTS
(a) Products and Services Warranties. Supplier represents, warrants and covenants, that its performance and all Products and Services provided under this Purchase Order shall, until the earlier of twelve (12) months after first placed into service by Lumen or eighteen (18) months after delivery (or performance) by Supplier (or for such longer warranty period as provided by Supplier): (i) be free from defects in design, workmanship and materials; (ii) be of the kind, quantity and quality described in, and conform with, the requirements specified in this Purchase Order; (iii) be fit for the purpose intended; (iv) perform in the manner specified; (v) in the case of Services, reflect the highest standards of professional knowledge and judgment; (vi) designed and constructed to be safe and without risk to human health; (vii) be free of any claim of misappropriation or infringement by a third party; (viii) if the Products are software, be the most current releases generally available to third parties at the time of delivery; and (ix) comply with all other requirements of this Purchase Order.
(b) Compliance Warranties. Supplier represents, warrants and covenants, that its performance and all Products and Services provided under this Purchase Order shall, for a perpetual duration (A) be free and clear of all liens, claims and encumbrances by the date delivered to Lumen; (B) If the Product is software, it shall not contain any (1) "back door," "time bomb," "drop dead" device or other software routine designed to disable the software automatically with the passage of time or under the positive control of any person or (2) virus, "Trojan horse," "worm" or other software routines or hardware components designed to permit unauthorized access, to disable, erase or otherwise harm the software, hardware or data, or to perform any other similar actions; (C) comply with all applicable global, federal, country, state, local, foreign and other laws, rules and regulations, ordinances, decrees, orders, codes and requirements (including, but not limited to, any requirements for consents, permits, certificates, approvals and inspections), as the same are promulgated, supplemented and/or amended from time to time (“Laws”) that apply to or govern the Services or Products to be provided by Supplier or any of the employees, contractors, subcontractors or agents of Supplier and its subcontractors (collectively, “Supplier Personnel”) pursuant to this Purchase Order Terms and Conditions.
(c) Training. All Supplier Personnel shall be properly educated, trained and qualified to provide the applicable Products and/or Services and shall be properly instructed on how to use and protect Confidential Information to ensure compliance with Supplier’s confidentiality obligations under Section 3. Lumen shall have the right to review and approve the qualifications of all Supplier Personnel assigned to provide the Products and/or the Services under this Purchase Order. Lumen shall also have the right to designate at any time that any such Supplier Personnel be removed and replaced with respect to the performance of any activities associated with this Purchase Order.
(d) Nonexclusive Remedies. Supplier shall, without additional cost to Lumen, within thirty (30) days of receipt of written notification of any non-conformance with the warranties set forth above in this Section 4, as directed by Lumen, correct any such non-conformance by promptly: (i) repairing, replacing or re-performing the non-conforming Products or Services; or (ii) refunding to Lumen all fees paid by Lumen hereunder for the non-conforming Products or Services and those Products or Services that are dependent on such non-conforming Products or Services. The foregoing shall not be construed to limit or exclude any other rights or remedies of Lumen at law or in equity. The warranty with respect to any such corrected Products or Services shall be subject to the same terms as the warranties provided for in this Section 4.
(e) Bribery/Anti-Corruption Breach. Supplier has not and will not directly or indirectly offer or pay, or authorize such offer or payment of, any money or anything of value in an effort to influence any Government Official (as defined below) or any other person in order for Lumen to improperly obtain or retain business or to gain an improper business advantage and has not accepted, and will not accept in the future, such a payment. For purposes of this Purchase Order, a “Government Official” shall be broadly interpreted and means: (i) any elected or appointed non-U.S. Government official (e.g., a legislator or a member of a non-U.S. Government ministry); (ii) any employee or individual acting for or on behalf of a non-U.S. Government official, non-U.S. Government agency, or enterprise performing a function of, or owned or controlled by, a non-U.S. Government (e.g., a healthcare professional employed by a non-U.S. Government hospital or researcher employed by a non-U.S. Government university); (iii) any non-U.S. political party officer, candidate for non-U.S. public office, or employee or individual acting for or on behalf of a non-U.S. political party or candidate for public office; (iv) any employee or individual acting for or on behalf of a public international organization; (v) any member of a royal family or a member of a non-U.S. military, and (vi) any individual otherwise categorized as a Government Official under applicable law. “Government” means all levels and subdivisions of governments (i.e., local, regional, or national and administrative, legislative, or executive). Any information provided by Supplier to Lumen in connection with Lumen’s anti-corruption due diligence is complete, truthful and accurate and Supplier agrees to inform Lumen if any responses in the due diligence questionnaire with respect to the Supplier or any individuals identified in the due diligence questionnaire or their Family Relatives, as defined therein, change during the term of this Purchase Order. If requested by Lumen, Supplier will complete and submit to Lumen, the Third Party Annual Compliance Certification at an annual interval, upon request by Lumen. Supplier agrees that upon request of Lumen, any persons acting on behalf of Supplier in connection with the delivery of the Products or the Services performed for Lumen, will complete anti-corruption training provided by Lumen, and will notify Lumen of any persons that require such training, at the time of contracting and during the term of this Purchase Order.
(f) Conflicts. The execution, delivery and performance of this Purchase Order by Supplier does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, and does not violate any law or regulation of any court, governmental body or administrative or other agency having authority over Supplier. Supplier is not currently a party to, and during the term of this Purchase Order will not enter into, any agreements, oral or written, that are inconsistent with its obligations under this Purchase Order.
(g) Authority. Supplier is validly existing and in good standing under the Laws of the jurisdiction of its organization and has the power and authority to enter into this Purchase Order. This Purchase Order has been duly executed and delivered by Supplier and constitutes the valid and binding obligation of Supplier, enforceable against it in accordance with its terms except as enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and other laws relating to or affecting creditors’ rights generally and by general equitable principles. The execution, delivery and performance of this Purchase Order have been duly authorized by all necessary action on the part of Supplier, its officers and directors.
(a) To the fullest extent permitted by applicable Laws, Supplier hereby agrees to defend, indemnify, and hold harmless Lumen, its affiliates (and their respective directors, officers, employees, agents, successors and assigns) (each, an “Indemnified Party”) from and against any and all claims, liabilities of every kind, including liability based on contributory, vicarious, or any other doctrine of secondary liability, or character, (collectively, “Losses”) arising out of or relating to any and all claims, liabilities, liens, demands, obligations, actions, proceedings, suits, causes of action of every kind (regardless of whether or not such Losses are caused in part by a party indemnified hereunder) arising out of or related to: demands, damages, judgments, awards, settlements, expenses, or losses, including costs of litigation and reasonable attorneys’ fees, arising, directly or indirectly, from: (i) the acts or omissions of Supplier or Supplier Personnel in connection with the provision of the Services or Products under this Purchase Order; (ii) any individual’s (including any Supplier Personnel’s) prospective, then-current or former employment by Supplier, including (A) any claim arising under occupational health and safety, worker’s compensation, ERISA or other applicable Law, (B) any claim based on or arising out of any theory that Lumen is an employer or joint employer of any Supplier Personnel, (C) any claim arising out of any termination or separation from Supplier; and (D) any claim arising out of Supplier’s failure to pay any of its Personnel; (iii) a breach by Supplier of the representations, warranties, covenants, and any other provisions set forth in this Purchase Order Terms and Conditions, including, but not limited to, any confidentiality obligations above and the obligations to comply with Laws; (iv) any claim charging that Supplier’s provision or Lumen’s purchase or use of the Products or Services provided under this Purchase Order constitutes misappropriation or infringement of any Intellectual Property Rights (as defined in Section 11 below) or breach of a confidential relationship; (v) injury to or death of any person or damage to any property resulting from and/or caused by Supplier or its Personnel in connection with the Supplier’s performance or non-performances of Supplier’s obligations under this Purchase Order ; (vi) Supplier’s failure to require any consultant or subcontractor to be insured as set forth under the terms of this Purchase Order; or (vii) the negligence or willful misconduct of Supplier or its Personnel. If the Products or Services, or the use of such Products or Services, are held to constitute an infringement or misappropriation and their sale or use is enjoined, Supplier shall, at Supplier’s expense and option, either procure for Lumen the right to continue to use such Products or Services, or replace the same with equivalent non-infringing Products or Services, or modify the same so they become equivalent non-infringing Products or Services; except that if the foregoing is not commercially practicable or upon request by Lumen, Supplier shall refund to Lumen all fees paid by Lumen under this Purchase Order for such Products or Services and those Products or Services that are dependent thereon.
(b) Supplier shall keep the Indemnified Party fully informed concerning the status of any litigation, negotiations or settlements of any claim, demand or action for which the Indemnified Party seeks indemnification hereunder. The Indemnified Party shall be entitled, at its own expense, to participate in any such litigation, negotiations and settlements with counsel of its own choosing. Supplier shall not have the right to settle any claim without the prior written consent of the Indemnified Party. This Section 5 shall not be construed to limit or exclude any other claims or remedies at law or in equity that an Indemnified Party may assert.
(a) Prior to the commencement of any performance under this Purchase Order, Supplier shall provide and maintain such insurance coverage, in minimum types and amounts as described below in this Section, as will protect it and Lumen (including Lumen affiliates, its and their employees, directors, officers, shareholders and agents) from all claims which may arise out of or result from Supplier's performance under this Purchase Order, whether such operations be by itself or by its subcontractors, agents or representatives or by anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable.
(b) Any and all deductibles for such insurance policies shall be assumed by, for the account of, and at Supplier's sole risk. All deductibles and self-insured retention amounts must be acceptable to and approved, in writing (if required), by Lumen.
(c) Such insurance policies shall be primary and non-contributing with respect to any other similar insurance policies available to Lumen or its affiliates. Except for Workers Compensation/Employers' Liability and Professional Liability/Errors & Omissions insurance, all such policies shall include Lumen and its affiliates and any other such entities as Lumen may reasonably request, as additional insureds. All such polices shall provide a waiver of subrogation in favor of Lumen and its affiliates.
(d) Supplier shall furnish to Lumen original certificates and additional insurance endorsements evidencing the specified insurance coverage, prior to beginning performance under this Purchase Order, and at contract renewal or expiration of any one coverage, whichever occurs first. If requested by Lumen, copies of the insurance policies, themselves will be provided. Not less than thirty (30) days’ prior written notice of any policy cancellation, or material change shall be given to Lumen. The Certificate(s) of Insurance shall be signed by a person authorized by the insurer(s) to bind coverage on its (their) behalf. Supplier shall provide, pay for, and maintain in effect the policies with minimum “A-” A.M. Bests rated insurance carriers, or insurance companies satisfactory to Lumen. Coverage shall be maintained for the duration of this Purchase Order or as specified below, whichever is longer.
(e) The insurance required under above shall be written for not less than any limits of liability specified herein or as required by law, whichever is greater. Supplier shall have the right to provide the total limits required by any combination of primary and Umbrella/Excess coverage; said insurance to include, without limitation, the following:
(i) Insurance for liability under the Workers’ Compensation or occupational disease laws of any state or other jurisdiction in which obligations of Supplier are performed (or be a qualified self-insurer in those states and jurisdictions) or otherwise applicable with respect to persons performing on behalf of Supplier and Employer’s Liability insurance covering all claims by or in respect to the employees of Supplier and all of its subcontractors, agents and representatives, providing:
(ii) Coverage for the statutory limits of all claims under the applicable State Workers’ Compensation Act or Acts. If the Supplier's performance will result in exposures under the U.S. Longshoreman’s Act and its amendments (work dockside or on water), the Jones Act (involving seaman, masters and crew of vessels) or the Federal Employer’s Liability Act (railroad exposure), coverage shall be extended to include insurance coverages mandated thereby
(iii) Employer’s Liability Insurance with a limit of not less than $1,000,000;
(iv) Voluntary Compensation insurance covering all employees not subject to the applicable state Workers’ Compensation Act or Acts. Commercial General Liability insurance with the following limits and forms/endorsements: Each Occurrence……….$2,000,000
(v) Products & Completed Operations Aggregate……….$2,000,000
(vi) Occurrence form including premises and operations coverage, products & completed operations, broad form property damage, coverage for independent contractors, personal injury coverage, blanket contractual liability, explosion, collapse, and underground (“XCU”) and watercraft liability coverage if any of the Supplier's performance is on or near a body of water.
(vii) Products & Completed operations coverage shall be maintained for a period of three (3) years following the date that this Purchase Order is completed and accepted.
(viii) Automobile and Truck Liability Insurance: $2,000,000 combined single limit for bodily injury and property damage arising out of all owned, non-owned and hired vehicles. This must cover all automotive and truck equipment used in the Supplier's performance both on and off Lumen's property, and must include the loading and unloading of same.
(ix) In the event Supplier is furnishing design services or other professional services, Supplier shall obtain Professional Liability or Errors & Omissions Insurance for the Services. Such insurance shall have a limit of $5,000,000 per occurrence. Coverage shall be maintained for a period of (3) years following final completion and acceptance of the Products and Services specified in this Purchase Order.
(x) Umbrella (Excess) Liability Coverage (follow form) in an amount not less than $3,000,000 per occurrence.
(xi) If Supplier has care, custody or control of Lumen property or inventory, Supplier shall be responsible for any loss or damage to it, and provide all risk Property Coverage at full replacement cost for same.
(f) Acceptance of Insurance Certificate. Acceptance of any insurance certificate by Lumen shall not constitute acceptance of the adequacy of coverage, compliance with the requirements of this Purchase Order or serve as an amendment to this Purchase Order.
7) LIMITATION OF LIABILITIES
(a) Notwithstanding the form (e.g., contract, tort or otherwise) in which any legal or equitable action may be brought, under no circumstances shall Lumen or its affiliates be liable for consequential, indirect, special, punitive, or incidental damages or lost profits, whether foreseeable or unforeseeable, based on claims of Supplier or any other party arising out of breach or failure of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort, failure of any remedy to achieve its essential purpose, or otherwise.
(b) Notwithstanding the form (e.g., contract, tort or otherwise) in which any legal or equitable action may be brought, in no event shall Lumen or its affiliates be liable for any damages or losses that exceed, in the aggregate, the amount of fees paid and payable by Lumen for the Products or Services that gave rise to such damages or losses for each respective breach or series of related breaches. This Section 7 shall not apply only when and to the extent applicable Law specifically requires liability despite the foregoing disclaimer, exclusion and limitation.
8) TERM AND TERMINATION
(a) Term. This Purchase Order shall commence upon Supplier’s acceptance of this Purchase Order and shall continue through Lumen’s acceptance of such Services or Products, as may be further specified in this Purchase Order.
(b) Termination. In addition to Lumen’s termination rights set forth elsewhere herein, Lumen may terminate this Purchase Order, in whole or in part, in its sole discretion: (i) upon 15 days’ prior written notice to Supplier for any reason; (ii) immediately upon written notice to Supplier if Supplier breaches this Purchase Order; if reasonable grounds for insecurity arise with respect to Supplier’s performance and Supplier fails to furnish adequate assurances within 5 days after written demand by Lumen for such assurance; or (iv) immediately upon written notice to Supplier if Supplier becomes insolvent or otherwise makes an assignment for the benefit of creditors, commits an act of bankruptcy or files or has filed against it a petition in bankruptcy or reorganization proceedings. During any notice period, Supplier shall cease to provide the cancelled Services or Products, as the case may be, to Lumen as soon as commercially practicable after receiving such notice.
(c) Termination for Breach of Anti-bribery/Anti-Corruption Representation. Lumen may terminate this Purchase Order effective immediately upon notice to Supplier, if Supplier (i) breaches any of the representations and warranties set forth in Section 4(b) or (ii) if Lumen learns that (a) improper payments are being or have been made or offered to Government Officials (as defined in Section 4(e)) or any other person by the Supplier or those acting on behalf of the Supplier with respect to this Purchase Order or that the Supplier or those acting on behalf of the Supplier with respect to this Purchase Order has accepted any payment, item, or benefit, regardless of value, as an improper inducement to award, obtain or retain business or otherwise gain or grant an improper business advantage from or to any other person or entity. Further, in the event of such termination, Supplier shall not be entitled to any further payment, regardless of any activities undertaken or agreements with additional third parties entered into by Supplier prior to such termination, and Supplier shall be liable for damages or remedies as provided by this Purchase Order, at law or in equity.
(d) Effect of Termination/Expiration. Upon termination or expiration of this Purchase Order: (i) Lumen shall be entitled to the ownership, possession, use and license of any and all work in process under this Purchase Order to which it is entitled pursuant to Section 9 below; (ii) Supplier shall invoice Lumen for all outstanding fees and expenses incurred for Services satisfactorily performed and/or Products delivered under this Purchase Order through and including the date of any such termination or expiration; and (iii) Supplier shall comply with its obligations under Section 3(b) above.
(e) Survival. The provisions of Sections 1(b), 1(c), 2(e), 3-5, 9(e), and 9-10 and any other provisions which are expressly or by implication intended to continue in force after such termination or expiration shall survive the termination of this Purchase Order. The obligations of Supplier under Section 6 shall survive termination of this Purchase Order for a period of 18 months.
9) INTELLECTUAL PROPERTY
For all work products and deliverables created under this Purchase Order through the performance of the Services, Supplier and Supplier Personnel hereby assign and transfer to Lumen all rights to possession of, and all right, title, and interest, including all patent, copyright, trademark, trade secret and other proprietary and intellectual property rights (“Intellectual Property Rights”) in and to such work products and deliverables created under this Purchase Order, in whatever form or medium captured, and in and to all physical and electronic materials, papers, and documents (including drawings), hereinafter referred to as “Works,” and copies, abstracts, and summaries thereof, which are developed or conceived or which may come into their possession in any manner by reason of the provision of Services under this Purchase Order. Supplier shall promptly disclose to Lumen any Works known to Supplier or Supplier Personnel, and all such Works shall be deemed to be “works made for hire” exclusively for Lumen, with Lumen having sole ownership of such Works and the sole right to obtain and to hold in its own name any Intellectual Property Rights therein and thereto. Supplier hereby agrees to give Lumen or any person designated by Lumen at Lumen’s expense, all reasonable assistance required to perfect the rights hereinabove defined. Supplier represents, warrants and covenants that it has caused or will cause all Supplier Personnel to enter into an enforceable agreement with Supplier prior to their performance of any Services, which agreement includes appropriate confidentiality, assignment of work product and invention provisions to effectuate the provisions of this Purchase Order. Notwithstanding the foregoing provisions, Lumen’s ownership rights do not apply or extend to any of the following (collectively, the “Supplier Property”): (i) any methodologies, methods of analysis, ideas, concepts, know-how, models, tools, techniques, skills, knowledge and experience or other materials or property owned or licensed by Supplier before the provision of the Services under this Purchase Order; (ii) any improvements or other modifications to any of the foregoing that Supplier creates during the performance of the Services under this Purchase Order without the use of any of Lumen’s Confidential Information or Intellectual Property Rights; or (iii) any of the Intellectual Property Rights in or to any of the items described in the preceding clauses (i) and (ii). All right, title, and interest in and to the Supplier Property is and shall remain in Supplier, and Supplier shall not be restricted in any way with respect to the Supplier Property. However, to the contrary, to the extent that any Supplier Property is incorporated into or embodied in any of the Works, or covers or controls any of the Works, or is necessary in order to fully and freely use any of the Works, Supplier hereby grants to Lumen and its affiliates a perpetual, irrevocable, worldwide, royalty-free, non-exclusive license, with the right to grant sublicenses, to (A) use such Supplier Property solely as part of or in connection with such Works or any derivative work based upon such Works, and (B) to modify such Supplier Property, solely to the extent such modification is necessary in connection with the creation of a derivative work based upon such Works.
(a) Use of Lumen Trademark/Name; Publicity. Supplier shall not issue any press release or other publicity materials, or make any presentation with respect to the existence of this Purchase Order or the terms and conditions hereof without the prior written consent of Lumen in each instance. Supplier shall not publicize or use any name, trade name, service marks, trademarks, trade dress or logos of Lumen (or any of its affiliates) nor identify Lumen (or any of its affiliates) as a customer without Lumen’s prior written consent in each instance. This restriction shall not, however, apply to the extent that any such disclosures are required by applicable Laws, including as may be required in connection with any filings required to be made with the United States Securities and Exchange Commission or by the disclosure policies of a major stock exchange.
(b) Governing Law; Venue. The validity, interpretation and performance of this Purchase Order shall be governed by and construed in accordance with the laws of the State of Washington without regard to the principles of conflicts of law. THE PARTIES EXPRESSLY AGREE THAT THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (1980) IS SPECIFICALLY EXCLUDED AND SHALL NOT APPLY TO THIS PURCHASE ORDER. All actions and proceedings under this Purchase Order shall be brought exclusively in a state or federal court of competent subject matter jurisdiction in King County in the State of Washington. Each Party hereby waives (i) any objection which it may have at any time to the venue of the proceedings in any such court, (ii) any claim that such proceedings have been brought in an inconvenient forum and (iii) the right to object, with respect to such proceedings, that such court does not have any jurisdiction over such Party. IN ANY CONTROVERSY OR CLAIM, WHETHER BASED IN CONTRACT, TORT OR OTHER LEGAL THEORY, ARISING OUT OF OR RELATING TO THIS PURCHASE ORDER, ITS NEGOTIATION, ENFORCEABILITY OR VALIDITY, OR THE PERFORMANCE OR BREACH HEREOF OR THE RELATIONSHIPS ESTABLISHED HEREUNDER, ALL PARTIES HEREBY WAIVE THEIR RIGHT TO TRIAL BY JURY.
(c) Relationship of the Parties. Lumen engages Supplier only for the purposes and to the extent set forth in this Purchase Order and, accordingly, Supplier shall not be considered a partner, co-venturer, agent, employee, or representative of Lumen, but shall remain in all respects an independent contractor, including for purposes of the Occupational Safety and Health Act or state equivalent. Neither Lumen nor Supplier shall have any right or authority to make or undertake any promise, warranty or representation, to execute any contract, or otherwise to assume any obligation or responsibility in the name of or on behalf of the other party. Neither Lumen nor Supplier shall be deemed a joint employer of the other’s employees, each party being responsible for any and all claims by its employees. Neither Party’s employees shall be deemed “leased” employees of the other for any purpose.
(d) Assignment; Subcontracting. This Purchase Order or any right or obligation arising therefrom shall not be assigned or transferred by Supplier in the absence of Lumen’s prior written consent thereto and any purported assignment or transfer absent such consent shall be automatically deemed null and void. Supplier shall not delegate or subcontract any of its obligations or responsibilities under this Purchase Order to any third party (including to an affiliate of Supplier) without Lumen’s prior written permission. No delegation or subcontracting by Supplier hereunder shall relieve Supplier of any of its obligations or responsibilities under this Purchase Order and Supplier shall remain responsible for obligations, services and functions performed by its subcontractors to the same extent as if they were performed by Supplier.
(i) Notwithstanding anything to the contrary contained in this Purchase Order, to the extent related to or arising in connection with a divestiture (whether by sale, spin-off, or similar transaction) by Lumen of all or any portion of a Lumen business or business unit (a “Divestiture”), Lumen may, without prior written notice to or consent of Supplier, without any penalty, and at no additional cost to Lumen or to any affiliate of Lumen or to the company or the group of companies resulting from such Divestiture (collectively, such companies, the “Resulting Companies”): (1) assign its rights and obligations under this Purchase Order, in whole or in part to one or more of the Resulting Companies, or (2) split and assign, in whole or in part, its rights and obligations under this Purchase Order to one or more of the Resulting Companies so as to retain the benefits of this Purchase Order for both Lumen and the applicable Resulting Compan(y)/(ies) following such Divestiture.
(ii) From and after any partial assignment or split (i) the rights and obligations of Lumen hereunder shall be divided between Lumen and the Resulting Compan(y)/(ies) to whom such rights and obligations are transferred as specified by Lumen, such that all such rights and obligations related to the business of the applicable Resulting Compan(y)/(ies) shall be enforceable only by and against the applicable Resulting Compan(y)/(ies), and all other such rights and obligations shall be enforceable only by and against Lumen and (ii) to the extent this Purchase Order contains any volume-based pricing or discounts in favor of Lumen or minimum purchase thresholds, any purchases by Lumen and the applicable Resulting Compan(y)/(ies) hereunder shall be aggregated for purposes of determining the applicable pricing and discounts and whether any minimum threshold has been met. Supplier will work cooperatively with Lumen and the applicable Resulting Compan(y)/(ies) to ensure a smooth and orderly transition, including, to the extent requested by Lumen, entering into separate agreements with Lumen and the applicable Resulting Compan(y)/(ies) on substantially the same terms and conditions (as adjusted to take into account the nature of the separate contracts while maintaining the economic, business and other purposes of the Purchase Order).
(iii) No term, condition or provision of this Purchase Order, whether express or implied, shall be construed to limit Lumen’s use of the Services for the benefit of Resulting Compan(y)/(ies) for up to two (2) years after a Divestiture, and Supplier shall not charge Lumen any additional fee of any kind whatsoever for such usage.
(f) Force Majeure. No Party shall be liable for any failure to perform or any delays in performance, and no Party shall be deemed to be in breach or default of its obligations set forth in this Purchase Order, if, to the extent and for so long as, such failure or delay is due to any causes that are beyond its reasonable control and not to its acts or omissions, including, without limitation, such causes as acts of God, natural disasters, flood, severe storm, earthquake, civil disturbance, lockout, riot, order of any court or administrative body, embargo, acts of government, war (whether or not declared), acts of terrorism, or other similar causes (“Force Majeure Event”). For clarity, raw material price increases, unavailability of raw materials, and labor disputes shall not be deemed a Force Majeure Event. In the event of a Force Majeure Event, the Party prevented from or delayed in performing shall promptly give notice to the other Party and shall use commercially reasonable efforts to avoid or minimize the delay. The Party affected by the other Party’s delay may elect to: (a) suspend performance and extend the time for performance for the duration of the Force Majeure Event, or (b) cancel all or any part of the unperformed part of this Purchase Order.
(g) Severability. If and solely to the extent that any court or tribunal of competent jurisdiction holds any provision of this Purchase Order to be unenforceable in a final non-appealable order, such unenforceable provision shall be stricken and the remainder of this Purchase Order shall not be affected thereby. In such event, the parties shall in good faith attempt to replace any unenforceable provision of this Purchase Order with a provision that is enforceable and that comes as close as possible to expressing the intention of the original provision.
(h) Waiver; Partial Invalidity. The failure of Lumen to insist in any instance upon strict performance by Supplier of any provision of this Purchase Order shall not be construed as a continuing waiver of such item, or waiver of any other provision of this Purchase Order or any corresponding Agreement. If any provision of this Purchase Order shall be held illegal or unenforceable by any governmental authority having jurisdiction over this Purchase Order, the validity of the remaining portions shall not be affected thereby.
(i) Headings. Headings are included herein for convenience of reference only, and shall not constitute a part of this Purchase Order or change the meaning of this Purchase Order.
[End of Purchase Order Terms and Conditions]