Terms & Conditions
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- Acceptance: This Order constitutes the offer of Save the Children Federation, Inc. ("SCUS") and shall become a binding contract upon the terms and conditions set forth here in when accepted by Seller (the “Terms”). This offer may be accepted only upon its terms. Additional or different terms and conditions contained in any offer or acceptance by Seller, oral and written, shall not be binding upon SCUS unless expressly agreed to in writing by SCUS.
- Changes: SCUS may at any time by written Order make changes in any of the following: (i) drawings, designs or specifications where the items to be furnished are to be specifically manufactured; (ii) method of shipping or packing and (iii) place of delivery. If any such changes cause an increase or decrease in the cost of, or the time required for the performance of any part of the work under this Order, an equitable adjustment shall be made in the contract price or delivery schedule or both, and the Order shall be modified in writing accordingly. Any claim by Seller for such an equitable adjustment under this clause must be asserted within twenty (20) days from the date or receipt by Seller of notification of change here under. SCUS may cancel any portion of this Order not yet shipped in the event SCUS is unable to use such products due to any cause.
- Timeliness: Time is of the essence of this Order. If Seller fails to make deliveries or perform the services at the time agreed upon, or performs the work here under in such a fashion as to endanger its ability to make timely deliveries or to render timely performance of services, for any reason whatsoever, even if due to strike, lockouts, government constraints, hostilities, acts of God, or any other factor beyond Seller's or SCUS's control, SCUS reserves the right and shall have the right to withhold payment during nonperformance, cancel, purchase elsewhere, and hold Seller accountable for any additional cost or damages incurred by SCUS. SCUS may, at its election, cancel this Order or any part thereof, if not filled within a reasonable time or within the time specified or if goods received and/or services performed do not comply with the provisions of this Order.
- Confidential Information: All non-public, confidential or proprietary information of SCUS, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by SCUS to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Order is confidential, solely for the use of performing the Order and may not be disclosed or copied, unless authorized by SCUS in writing. Upon SCUS’s request, Seller shall promptly return all documents and other materials received from SCUS. SCUS shall be entitled to injunctive relief for any violation of this Section 4. This Section 4 shall not apply to information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a non-confidential basis from a third party.
- Inspection and Rejection: Inspection shall be on SCUS premises unless otherwise agreed in writing. Notwithstanding prior inspection, payment for, or use of the goods, SCUS shall have the right to reject any article which is defective in material or workmanship; or otherwise not in conformity with the specifications or other requirements of this Order, within a reasonable time after delivery or actual discovery of a defect in material or workmanship, whichever occurs later. If SCUS rejects any portion of the goods, SCUS has the right to: (a) rescind the Order in its entirety; (b) accept the goods at a reasonably reduced price; or (c) reject the goods and require replacement of the rejected goods. Rejected material shall be deemed to be the property of Seller. If SCUS requires replacement of the goods, Seller shall, at its expense, promptly replace the nonconforming goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement goods. If Seller fails to timely deliver replacement goods, SCUS may replace them with goods from a third party and charge Seller the cost thereof and terminate this Order. SCUS’s failure to inspect shall not relieve Seller of any of its responsibilities. Any inspection or other action by SCUS under this Section 5 shall not reduce or otherwise affect Seller’s obligations under the Order, and SCUS shall have the right to conduct further inspections after Seller has carried out its remedial actions.
- Warranties: Seller warrants that all items and parts thereof delivered under this Order will be free from defects in design, material and workmanship; conform to applicable specifications and/or drawings; be suitable for the intended purposes; shall be new and not refurbished or reconditioned, unless expressly agreed in writing by SCUS; comply with all applicable federal, state and local laws, rules, ordinances and regulations; and not violate or infringe upon any patent, patent right, trademark, copyright or other proprietary or personal right. Seller further warrants that its products are not hazardous as that term is defined in the Consumer Products Safety Act and the Federal Hazardous Substance Act and that it has complied with all testing procedures required for its products, if any. In addition, Seller warrants that SCUS shall have good and marketable title to all goods (including all components thereof) purchased by SCUS pursuant to the Order, free of all liens and encumbrances and that no licenses are required for SCUS to use such goods. Seller further warrants that if, in the course of the performance of this Order, its agents, employees, or subcontractors enter upon premises occupied or under the control of SCUS or its customers or suppliers, Seller shall take all precautions necessary to prevent the occurrence of any injury to any person or damage to any property arising out of any acts or omissions of its employees or subcontractors. Seller shall have in effect such insurance as will protect SCUS from any such risks and from any claims under any applicable Workman's Compensation, or Occupational Health and Safety Acts. Neither receipt of material, work product or merchandise nor payment therefore shall constitute a waiver of this provision. These warranties survive any delivery, inspection, acceptance or payment of or for the goods by SCUS. These warranties are cumulative and in addition to any other warranty provided by law or equity. If SCUS gives Seller notice of noncompliance with this Section 6, Seller shall, at its own cost and expense, promptly replace or repair the defective or nonconforming goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement goods to SCUS. Seller transfers to SCUS, only to the extent transferable, the warranty, if any, given by the manufacturer of any Goods supplied under this Agreement that were not manufactured by Seller. Such manufacturer’s warranty period shall be longer or equal to Seller’s manufactured warranty.
- Indemnification: Seller shall defend, indemnify and hold harmless SCUS, its affiliates, successors or assigns and their respective directors, officers, shareholders employees, customers and users (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification here under and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with (a) the goods purchased from Seller, (b) acts, omissions or failures to act by Seller, its subcontractors, agents or employees, in connection with the performance or non-performance of this Agreement, (c) any actual or claimed infringement of any patent, copyright, mask work, trademark, trade secret or other intellectual property, proprietary or contractual right of any third party, with respect to the goods or services provided under the Order, or (d) Seller’s negligence, willful misconduct or breach of the Terms, except due to gross negligence of SCUS. Seller shall not enter into any settlement without SCUS’s or Indemnitee’s prior written consent.
- Limitation of SCUS’s Liability. SCUS’ ENTIRE LIABILITY TO SELLER OR ANY THIRD PARTY, IF ANY, FOR ANY CLAIMS, DEMANDS, CAUSES OF ACTION, ARISING IN TORT, CONTRACT, OR OTHERWISE, INCLUDING WITH RESPECT TO ANY STATUTORY CLAIM, IS LIMITED SOLELY TO THE PRICE ACTUALLY PAID BY SCUS UNDER THESE TERMS. NOTWITHSTANDING THE FOREGOING LIMITATION, SCUS SHALL NOT BE LIABLE TO SELLER FOR SPECIAL, INDIRECT, ECONOMIC, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING UNDER THESE TERMS, OR OTHERWISE, WITH RESPECT TO THE SALE, PURCHASE, OR USE OF THE GOODS, INCLUDING ANY LOST REVENUE OR PROFITS, BUSINESS INTERRUPTION OR DAMAGE TO BUSINESS REPUTATION, REGARDLESS OF THE THEORY UPON WHICH ANY CLAIM MAY BE BASED, INCLUDING, WITHOUT LIMITATION, TORT, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, PRODUCT LIABILITY OR ANY STATUTORY CAUSE OF ACTION.
- Tax Exemption: Save the Children is generally exempt from federal, state and local taxes for purchases made in furtherance of its exempt mission, including Connecticut sales and use taxes (Permit E-4215) and federal excise taxes (Exemption No. 06-0726487). Seller shall not charge Save the Children any taxes in connection with the Order to the extent permitted by law. Seller is familiar with and shall comply with the requirements applicable to claiming such exemptions. Save the Children shall provide copies of exemption certificates upon request.
- Invoices and Payment: No change in the prices listed in this Order may be made by Seller, without the express written consent of SCUS. Invoices must be rendered for each shipment under this Order on date of shipment and must contain the purchase Order number on the front of the invoice. If not received promptly, invoices may be returned for re-dating. The Seller warrants that the prices of the items covered in this Order are not in excess of the Seller's lowest prices in effect on the date of this Order for comparable quantities of similar items. SCUS is not responsible for any late charges on past due invoices. Unless otherwise agreed upon, SCUS shall pay in voices thirty (30) days from the time of receipt. All invoices are to be submitted directly to SCUS Accounts Payable at [email protected].
- Delivery: Delivery shall be made FOB SCUS place of business at the address shown on the face of this Order and during SCUS’s usual business hours unless otherwise specified thereon. All shipments moving one day to the same location via the same carrier should be consolidated on one bill of lading. Unless otherwise specifically instructed, shipments via limited liability carriers (Air Express, Air Freight, UPS, etc.) and those subject to released value ratings shall be declared at the value which will secure the lowest transportation charge. Any losses resulting from deviation from SCUS's routing instructions will be charged to the Seller's account. Risk of loss shall not pass to SCUS until goods have been accepted by a SCUS authorized representative. In the event of rejection of the goods by SCUS, Seller shall bear all expense necessary to return goods to Seller. Deliveries are to be made both in the quantities and at the times specified on this Order or in schedules furnished by SCUS. SCUS may from time to time change delivery schedules or direct temporary suspension of scheduled shipments. SCUS at its option, reserves the right to either approve a revised delivery schedule or terminate the Order in the event of a default by Seller or if shipments are not made within the specified time. SCUS reserves the right to hold Seller accountable for any additional costs or damages incurred by SCUS as a result of late delivery. All items delivered shall be suitably boxed so as to be protected against hazards of shipment, storage and exposure. Different types of merchandise shall be separately packed and packages shall be labeled to show the number of this Order, quantity, date and description of item. Itemized packing slips showing the number of this Order must accompany each delivery. Except as expressly provided in the Order, packing, shipping, unloading, assembling and installation are included in the purchase price set forth in the Order and SCUS shall not be charged any additional amounts for such services. Seller must provide SCUS prior written notice if it requires SCUS to return any packaging material. Any return of such packaging material shall be made at Seller’s expense. All shipments on which freight charges are due must be prepaid. Collect shipments cannot be accepted.
- Assignment and Set-off: Assignment of this Order or any interest therein, or any payment due or to become due there under, without the written consent of SCUS shall be void. SCUS shall have the right to reduce and set-off against amount payable here under any indebtedness or other claim which SCUS may have against the Seller, however, and whenever arising.
- Cumulative Remedies and Applicable Law: The rights and remedies herein reserved to SCUS shall be cumulative and additional to any other or further rights and remedies provided in law and equity. All matters arising under or related to the Order shall be construed and enforced in accordance with the laws of the State of Connecticut, without regard to conflicts of law rules. Without limiting SCUS’s rights and remedies at law or in equity, SCUS reserves the right to charge Seller for any loss, expense (including reasonable attorneys’ fees) or damage sustained as a result of Seller’s failure to deliver conforming goods or services or other breach of the Order, including without limitation, expenses incurred in connection with SCUS’s purchase of substitute goods, incidental damages and consequential damages resulting from Seller’s failure or breach.
- Non-Waiver of Rights: The failure of SCUS to insist upon strict performance of any of the Terms, or to exercise any rights or remedies, shall not be construed as a notification or waiver of any such Terms. No waiver shall be effective unless stated in writing by SCUS.
- Publicity, Promotion or Advertising: Seller shall not, without SCUS prior written consent, disclose any of the terms of this Order nor issue any news release, advertisement, publicity, or promotional material regarding this Order, including denial or confirmation thereof. In addition, Seller will not use the trade or service marks of SCUS without SCUS's prior written consent.
- Cash Discounts: Discount periods shall be calculated either from the date of acceptable invoice or from date of receipt and acceptance of the goods or performance of services, whichever is later. Payment or other terms identified on the Seller’s invoice which are contrary to those of the Order shall have no force and effect unless acted upon or approved in writing by SCUS. Errors, omissions or delays in receiving invoices shall be considered just cause for withholding payments without loss of cash discount privilege.
- Most Favored Customer. Seller represents and warrants that the price for the goods is the lowest price charged by Seller to any of its external buyers for similar volumes of similar goods. If Seller charges any other buyer a lower price, Seller must apply that price to all goods under this Order. If Seller fails to meet the lower price, SCUS, at its option, may terminate this Order without liability.
- Government Contracts: If the Order [as denoted on the face of the Order] is made with funds obtained by SCUS directly or indirectly from a Federal grant or contract, Seller shall comply with all applicable provisions of Attachment I.
- Termination for Convenience: SCUS may, by written notice to Seller, terminate the Order, or any part thereof, for any or no reason, for SCUS’s convenience. Upon notice of termination, Seller shall immediately stop all work and cause its suppliers and/or subcontractors to stop all work in connection with the Order. If SCUS terminates for convenience, SCUS shall pay Seller for goods and services accepted as of the date of termination, and for Seller’s actual, reasonable, out of pocket costs incurred directly as a result of such termination. SCUS shall have no responsibility for work performed after Seller’s receipt of notice of termination.
- Default: Upon the happening of any one of the following events, SCUS shall forthwith have the unrestricted right to cancel and terminate the contract without cost or liability to SCUS: (a) Seller's insolvency or inability to meet obligations as they become due; (b) filing of voluntary or involuntary petition of bankruptcy by or against Seller; (c) institution of legal proceedings against Seller by creditors or stockholders; (d) appointment of a receiver for Seller by any court of competent jurisdiction; (e) Seller makes any misrepresentation hereunder or breaches any of its obligations hereunder and such misrepresentations or breach is not or cannot be cured with fifteen (15) days of such notice. The acceptance of goods or performance after the occurrence of any of the events above enumerated shall not affect the right of SCUS to cancel its additional obligations.
- Enforceability: If any clause of this Order is held as a matter of law to be unenforceable or unconscionable, the remainder of this Order shall be enforceable without such clause.
- Insurance: During the term of the Order, Seller shall maintain adequate insurance in any and all forms necessary to protect both Seller and SCUS against all liabilities, losses, damages, claims, settlements, expenses and legal fees arising out of or resulting from performance or provisions of the Purchase Order. Although evidence of certain minimum coverage may be required, nothing contained herein shall abridge, diminish or affect Seller’s responsibility for the consequences of any accidents, occurrences, damages, losses, and associated costs arising out of or resulting from performance or provisions of the Purchase Order. Seller acknowledges that at no time shall SCUS be liable for any of Seller’s insurance obligations, nor shall Seller rely upon SCUS for any insurance coverage or reimbursement. Seller shall maintain workers’ compensation insurance providing benefits to all of its employees with limits no less than the amounts required by applicable statutes.
- Compliance with Law: Seller is in compliance with and shall comply with all applicable laws, regulations and ordinances, including without limitation, all applicable provisions of Executive Order 11246 and Executive Order 11375, as amended; the Vietnam Era Veterans Readjustment Assistance Act of 1975, Executive Order 11701, the Rehabilitation Act of 1973, Executive Order, and the rules, regulations and relevant orders of the Secretary of Labor. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Order. In addition, Seller represents and warrants that, in the production and sale of goods to be delivered pursuant hereto, Seller has complied with all applicable federal, state, and municipal laws and regulations, including, without limitation, (a) all such laws and regulations pertaining to health, safety and environmental standards, (b) all such laws and regulations pertaining to design, manufacture, testing, labeling, and transportation of such goods, and (c) all such laws and regulations pertaining to affirmative action, nondiscrimination, and equal opportunity, including without limitation, the requirements of the Fair Labor Standards Act of 1938, as amended, and the rules and regulations of the Secretary of Labor issued pursuant to Executive Order Number 11246 of September 24, 1965.
- Conduct of Personnel: While at any SCUS location, Seller’s personnel, agents, and subcontractors shall comply with all reasonable requests, standard rules, and regulations of SCUS communicated to Seller regarding personal and professional conduct, including without limitation any security or privacy requirements, and shall otherwise conduct themselves in a businesslike manner. In addition, the Seller certifies that it has reviewed a copy of SCUS’s “Child Safeguarding Policy” located at www.savethechildren.org and “Zero Tolerance Fraud Policy” located at www.savethechildren.org/ and which is attached hereto as Appendix II, and that the Seller will abide by the terms and conditions thereof. The certification set forth herein is a material representation of fact upon which SCUS shall rely. If it is later determined that the Seller rendered an erroneous certification or violates the certification, SCUS may unilaterally terminate the agreement for cause prior to the end of its term, in addition to any other available remedies.
- Access to Records: SCUS shall have access to and the right to examine any directly pertinent books, documents, papers and records of Seller involving transactions related to this Agreement until the expiration of three (3) years after final payment hereunder. Seller agrees to keep and maintain such records for such period of time. If this Agreement is for the sale of goods with a value of $10,000 or more within any 12-month period, then Seller shall make available, upon written request from SCUS, such books, documents and records until the expiration of four years after the final delivery of goods pursuant to this Agreement.
- Attorneys’ Fees: In the event it becomes necessary for SCUS to enforce these Terms, or to defend or prosecute any litigation arising out of or as a result of these Terms, or in connection with the sale of the goods to SCUS by Seller, SCUS shall be entitled to recover from Seller, in addition to any other relief granted, reasonable attorneys’ fees, expert fees, costs and expenses of litigation to the extent SCUS is the substantially prevailing party.
“FLOW-DOWN” CLAUSES APPLICABLE TO PURCHASE ORDERS INVOLVING FUNDS FROM A FEDERAL GOVERNMENT CONTRACT OR GRANT
If the Order involves funds from a Federal government contract, or funds from a subcontract at any tier relating to a Federal government contract, the following clauses from the Federal Acquisition Regulation (FAR) and the Defense Federal Acquisition Regulation Supplement (DFARS) are incorporated into the Order by reference where applicable and form a part of the Terms. The full text of the FAR clauses may be found at http://www.arnet.gov/far/. The full text of the DFARS clauses may be found at http://farsite.hill.af.mil/vfdfara.htm. Seller agrees to flow down all applicable FAR and DFARS clauses to lower-tier subcontractors. Where necessary to make the language of the FAR and DFARS clauses applicable to the Order the term contractor shall mean Seller, the term contract shall mean the Order, and the terms government, contracting officer, and equivalent terms and phrases shall mean Save the Children Federation, Inc.
CLAUSES APPLICABLE TO PURCHASES OF “COMMERCIAL ITEMS”
The following clauses apply to Orders involving commercial items, a term defined at FAR 52.202-1. In general, a commercial item is a product or service that is available to the general public in the commercial marketplace. Only the following clauses are required for purchases of commercial items.
FAR 52.202-1 Definitions (Dec. 2001)
FAR 52.219-8 Utilization of Small Business Concerns (Oct. 2000)
FAR 52.222-26 Equal Opportunity (Apr. 2002) (subparagraphs (b)(1)-(b)(11) only)
FAR 52.222-35 Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans (Dec. 2001)
FAR 52.222-36 Affirmative Action for Workers with Disabilities (June 1998)
FAR 52.244-6 Subcontracts for Commercial Items (Apr. 2003)
52.222-50 Combating Trafficking in Persons (March 2015)
FAR 52.247-64 Preference for Privately Owned U.S.-Flag Commercial Vessels (Apr. 2003)
DFARS 252.225-7014 Preference for Domestic Specialty Metals, Alternate I (Apr. 2003)
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