1. Application: These Terms and Conditions shall apply to Zoom+ and/or its affiliates’ or subsidiaries’ (“Zoom”) purchase of goods and services as further documented by Purchase Orders, Master Purchase Agreements, Master Service Agreements, Maintenance Agreements, Scheduling Agreements, or any other similar agreement (collectively “Purchase Order” or “PO”). “Services” and/or “Goods” as used herein, shall mean the work, services or goods provided pursuant to the PO. “Seller” as used herein, shall mean the seller of services or goods provided, and shall include its parents, affiliates, subsidiaries, employees, officers, agents, and subcontractors. In the event of a conflict between these terms and conditions and the terms contained on the face of the PO, the terms on the face of the PO shall control. Zoom objects to any different or additional terms (including any general terms which Seller may have included in any documents attached to or incorporated on the face of the PO). Seller shall be deemed to have accepted the terms of the PO when it begins performance under the PO. This PO shall be binding upon Seller, and its successors and assigns, if any, and Seller shall obtain the agreement of each of its agents and subcontractors to be bound to these terms and conditions unless otherwise authorized and approved by Zoom.
2. Acceptance: Seller’s acceptance of all of the Terms and Conditions of this PO shall be deemed to occur when Seller performs any work or Services in relation to the Purchase Order, when Seller ships any Goods ordered hereunder, or when Seller accepts any payment from Zoom under this PO. ANY DIFFERENT OR ADDITIONAL TERMS IN YOUR ACCEPTANCE OF THIS PO ARE HEREBY REJECTED. The Seller further represents and warrants that it has the capability, skill and expertise to complete the Services required, and that it will perform all of the Services required for the sum provided in the PO.
3. Compliance with the Law: Seller specifically undertakes, guarantees, warrants, and certifies that all Goods and Services furnished under this PO shall comply with all applicable federal, state/provincial, and local laws, regulations, voluntary industry standards, codes or other obligations (“Laws”), regardless of whether such Laws are specifically set forth in this PO. Seller shall pass down, as applicable, all compliance requirements for all such Laws to their agents, subcontractors and employees. Unless otherwise stated on the face of this PO, Seller shall procure at its cost all necessary permits and licenses as may be necessary before and during the performance of Services and delivery of Goods.
4. Zoom PO Number: Seller shall place Zoom’s PO Number (shown on the face of this PO) on all invoices, Bills of Lading, notices, and correspondence related to the applicable PO.
5. Supply Chain Security and Customs Compliance: Zoom participates in and supports the US Customs and Border Protection Trade Partnership Against Terrorism Program (“C-TPAT”). Seller warrants that it (i) participates in C-TPAT or an equivalent and recognized supply chain security program or (ii) has implemented similar security procedures designed to protect supply chain activities from terrorist attacks. Additionally, Seller agrees to reimburse Zoom for any costs incurred in amending customs entries or for additional duties imposed due to errors/omissions in Seller’s customs paperwork.
6. Labeling: All Goods, wrappers and containers must bear markings and labels as required by applicable federal, state/provincial, and local laws and regulations and in accordance with Zoom specifications.
7. Independent Contractor: SELLER SHALL PERFORM ITS DUTIES HEREUNDER AS AN INDEPENDENT CONTRACTOR AND NOT AS AN EMPLOYEE AND IS NOT ENTITLED TO TAX WITHHOLDING, WORKER'S COMPENSATION, UNEMPLOYMENT COMPENSATION, OR ANY EMPLOYEE BENEFITS, STATUTORY OR OTHERWISE FROM ZOOM. NEITHER SELLER NOR ANY AGENT, EMPLOYEE OR SUBCONTRACTOR OF SELLER SHALL BE DEEMED TO BE AN AGENT OR EMPLOYEE OF ZOOM OR SHALL HAVE AUTHORIZATION, EXPRESS OR IMPLIED, TO BIND ZOOM TO ANY AGREEMENTS, LIABILITY, OR UNDERSTANDING EXCEPT AS EXPRESSLY SET FORTH HEREIN. SELLER SHALL PAY WHEN DUE ALL REQUIRED EMPLOYMENT TAXES AND INCOME TAX WITHHOLDING, INCLUDING ALL INCOME TAX ON ANY MONIES PAID PURSUANT TO THIS PO. SELLER SHALL BE SOLELY RESPONSIBLE FOR THE ACTS OF SELLER, ITS EMPLOYEES, ITS AGENTS AND ITS SUBCONTRACTORS.
8. Labor and Materials: Unless otherwise provided in the PO, the Seller shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, lodging and other facilities and services necessary for proper execution and completion of the Services whether temporary or permanent and whether or not incorporated or to be incorporated in the Services. The Seller shall enforce strict discipline and good order among the Seller’s employees and other persons carrying out this PO. The Seller shall deliver, handle, store and install materials in accordance with the manufacturers’ instructions. The Seller may make substitutions only with the written consent of Zoom, after evaluation by Zoom and in accordance with a properly authorized Change Order (as defined below).
9. Amendments: None of the Terms and Conditions herein may be modified or changed in any respect by the Seller or by Zoom unless such proposed change or modification has been approved prior to the provision of Goods or the performance of Services, including shipment, in writing signed by both parties. No modification or change to the Terms and Conditions herein shall be applicable to any other PO between Zoom and Seller, or any Services performed thereunder, unless it is specifically agreed to in writing by Seller and Zoom.
10. Changes: The quantity, performance, specification, design, type or components of the Services provided under this PO, or in or of the Goods delivered by Seller to Zoom shall not differ from those specified by this PO, nor shall any other modifications of this PO be effective unless such change or modification is first authorized by Zoom in writing. Any change in: (1) drawings and specifications; (2) methods of packaging and shipping; (3) schedules; (4) quantities; (5) the place of delivery; and/or (6) any other reasonable term of the PO relating to the scope or type of the Goods and Services to be provided, shall be in writing signed by both parties (“Change Order”). Seller shall either advise that the change will not affect its costs, or furnish: (a) a breakdown of estimated cost and changes in the compensation attributable thereto, and (b) a statement of any necessary changes in the time of completion. The acceptance of any Goods or Services that have been so changed or modified without Zoom's prior written consent shall be subject to revocation and Zoom may reject or refuse to pay for such Goods or Services.
11. Terms of Payment: Unless otherwise indicated on the face of the PO, Zoom shall make payment equal to 30% of the total PO amount within thirty (30) days of the commencement of the Services described in the PO. After completion of the Services and upon Zoom’s approval, the balance of PO amount shall be paid within thirty (30) days of delivery of an invoice in accordance with the terms of this PO. Zoom may withhold payment in whole or in part and take action in accordance with the below sections titled “Inspection,” “Improper Delivery,” and “Correction of Work” and “Zoom’s Right to Stop the Services” for Goods and/or Services found by Zoom to be defective, untimely, unsatisfactory, or otherwise not conforming to this PO, or not in accordance with all applicable Laws. Zoom may set off any amounts which may become payable to Seller against any amounts which Seller may owe to Zoom. Seller agrees to grant to Zoom a complete release of all liens that could arise out of this PO.
12. Inspection: Zoom shall have the right to send one or more of its employees and/or representatives to inspect those portions of Seller’s facilities at which the Goods are produced, stored, or handled, during Seller’s regular business hours with reasonable advance notice. Seller, without cost to Zoom, shall provide all reasonable assistance for the safety and convenience of the inspectors. At the time of inspections, Seller shall make available copies of all drawings, specifications, and packaging data applicable to the Goods. The inspection shall be deemed as preliminary only and all items shall be subject to final inspection and acceptance upon delivery.
13. Improper Delivery: Notwithstanding any prior payment, Zoom shall have a reasonable time, after the receipt of Goods and/or the completion of Services, to inspect and test any Goods and Services provided under this PO, and reject any items that are, in Zoom's judgment, nonconforming or defective. Failure by Zoom to inspect any Goods and/or test any Services shall not relieve Seller of any responsibility. If Zoom elects to accept nonconforming or defective Goods and/or Services, Zoom, in addition to its other remedies, may notify Seller of such decision and Seller and Zoom shall negotiate a reasonable way to compensate Zoom for the nonconformity or defect. Zoom reserves the right, even after it has paid for and accepted said Goods or Services, to make a claim against Seller on account of any Goods or Services which did not prove to be satisfactory or were defective. If the Services are of a nature that any defect or failure to conform does not or would not become apparent (despite the carrying out of any inspection or testing) until after performance, Zoom shall be entitled to reject them even after substantial performance. Where Services are rejected, Zoom shall be entitled to, at its option, require the Services be re performed or corrected at the Seller’s expense, or Zoom may cancel the relevant PO. In the case of Goods rejected, Zoom may dispose of such rejected Goods on the Seller’s behalf. In such case, Zoom shall invoice Seller the full cost of disposal including any applicable taxes and/or require that the Goods be replaced or repaired.
14. Correction of Work: If, within one year after Zoom accepts the Goods or Services (or longer if provided in the PO, manufacturer’s warranty, or in the ordinary usage of trade), or one year after the date for commencement of warranties, or by the terms of an applicable special warranty required by this PO, any of the Goods and/or Services are found to be not in accordance with the requirements of this PO, the Seller shall correct it promptly after receipt of written notice from Zoom. If, after being notified, the Seller fails to correct nonconforming Services within a reasonable time, Zoom may correct the Services and deduct the actual expenses incurred during the correction from the amount paid to the Seller.
15. Zoom’s Right to Stop the Services: If Seller fails to correct Services completed, which is not in accordance with the PO, or persistently fails to carry out the Services in accordance with the PO, Zoom may issue a written order to Seller to stop Services until the cause for such order is eliminated.
16. Shipment and Delivery Terms: Unless otherwise indicated in this PO, Terms and Conditions shall be FOB Destination.
17. Use of Site and Clean-up: The Seller shall confine operations at the site where the Services are to be performed (“Site”) to areas permitted by law, ordinances, permits and the PO and areas reasonably necessary to perform the Services described in the PO. Seller shall not unreasonably encumber the Site with materials or equipment. Seller shall keep the property free from accumulation of waste material or rubbish caused by its employees or Services performed. Seller shall be responsible for properly and legally handling and disposing of all waste and hazardous material used in the course of or generated as a result of the Services to be performed under the PO and Seller shall provide to Zoom written confirmation of proper disposal of hazardous material if requested by Zoom. If Seller fails to comply with this paragraph, Zoom may perform such clean up and charge Seller for any and all associated costs.
18. Force Majeure: Neither party shall be liable for delays due to causes not reasonably foreseeable which are beyond reasonable control, such as acts of God, acts of civil or military authorities, terrorism, fires, strikes, floods, epidemics, war or riots. In the occasion of any such delay caused by such an event of force majeure, the date of the performance may be extended for a period of time equal to the time actually lost by reason of such delay, without cost to either party. Whenever Seller has knowledge that any actual or potential force majeure or labor dispute is delaying or threatens to delay the timely performance of this PO, Seller shall give immediate notice to Zoom. Material changes in commodity price shall not be considered force majeure.
19. Warranties: Except to the extent otherwise specifically set forth in the PO, Seller represents that: (a) all Goods provided under this PO are (1) new and unused (unless otherwise specified or agreed to in writing by Zoom) and free from defects in material and workmanship, and (2) of the quality, size and dimensions ordered; (b) all Goods and Services (1) are fit for the particular needs and purposes of Zoom and are in conformity with any applicable performance requirements or specifications as set forth in this PO or as may be otherwise communicated, and Seller has visited the Site, has become generally familiar with local conditions under which the Services are to be provided and has correlated personal observations with requirements of the PO, (2) comply with the highest warranties and representations expressed by Seller orally or in a written advertisement, correspondence, or other document provided to or in the possession of Zoom; (3) comply with all Laws; and (4) do not violate and are not restricted in any way by patents, copyrights, trade secrets, or any other rights of third parties; and (c) all Services will be performed in a professional and workman-like manner. If the Goods are or become defective during the shelf life as defined in the Zoom specifications, Seller shall correct such defect or nonconformity at Seller's expense. The corrective work shall be done diligently and expeditiously, consistent with Zoom's needs. Seller guarantees any adjustment, repair or replacement to the same extent the original Goods were warranted for a period of one year after such corrective work. If any of the foregoing warranties are breached, Seller agrees to correct the defects and nonconformities at Seller's expense, to be liable for all direct damages suffered by Zoom and any other persons, and to defend and indemnify Zoom, its officers, employees, and agents from any claim asserted by any person resulting in whole or in part from such breach. The foregoing warranties shall not be waived by reason of the acceptance of the Goods and Services or payment and Seller's indemnity obligations shall be in addition to any other remedies provided by law.
20. Indemnification: To the fullest extent permitted by law, Seller agrees to defend, indemnify and hold harmless Zoom, its officers, employees, and agents from injuries, damages, fines, penalties, liabilities and/or losses, including costs and reasonable attorneys' fees, arising from (a) the negligent acts and omissions of Seller, (b) willful misconduct of Seller, (c) the alleged or actual breach by Seller of any of its obligations or warranties under this PO, (d) claims against Zoom by subcontractors used by Seller, and (e) Seller’s failure to adhere to Laws. Notwithstanding the above, Zoom, at its sole discretion, reserves the right to defend itself; such election by Zoom shall not in any way limit the Seller’s responsibility to indemnify and hold harmless as provided herein.
21. Limitation of Liability: NOTWITHSTANDING THE INDEMNIFICATION REQUIREMENTS HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF THIS PO.
22. Insurance: Unless more specific insurance provisions are attached or included on the face of this PO, the following shall apply: At all times during its performance under this PO, Seller shall obtain and keep in force comprehensive general and professional liability insurance, including coverage for death, bodily or personal injury, property damage, including products liability, pollution liability (if requested by Zoom), and automobile coverage, with limits of not less than: (a) Employers Liability: Minimum $1,000,000; (b) Comprehensive General Liability, Combined Single Limit Bodily Injury/Property Damage: $1,000,000 per Occurrence, $3,000,000 Aggregate; (c) Automobile Liability: $1,000,000 Each Person, Each Accident Combined Single Limit Bodily Injury/Property Damage; (d) Liability Umbrella: $1,000,000 per Occurrence Combined Single Limit Bodily Injury/Property Damage, and, if applicable; (e) Errors and Omissions Insurance (or other Professional Liability Insurance): $1,000,000 per Occurrence, $3,000,000 Aggregate Combined Single Limit. If requested by Zoom, Seller shall provide certificates evidencing such insurance, shall name Zoom as an additional insured, and shall provide for notification to Zoom within at least thirty (30) days prior to modification, expiration or cancellation of such insurance. Seller represents that it has worker's compensation insurance to the extent required by law and agrees to furnish proof of such insurance to Zoom upon request.
23. Zoom Information: Seller shall regard as confidential all information developed by or communicated to it in the course of or in connection with its performance under this PO, and shall not, without Zoom’s prior written approval, make any oral or written disclosures of the confidential information or of the existence of this PO, either during or after the term of the PO, except to Zoom’s employees and other authorized persons who may be designated to work with Seller in performing under the PO. Seller and its permitted sub-contractors shall not make use of and shall not copy or communicate to any third party any technical or other information, designs, drawings, specifications, formulae or know how given to it by Zoom (other than information which is public knowledge) except as may be reasonably necessary for the provision of the Services or for the supply of the Goods or provision of Services under this PO. Seller shall keep in strict confidence all confidential information concerning Zoom’s business or its products which Seller may obtain, and Seller shall restrict disclosure of such confidential material to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging Seller’s obligations to Zoom and shall ensure that such employees, agents or sub-contractors are subject to like obligations of confidentiality as bind Seller. All drawings, plans, specifications and other material supplied by Zoom and any intellectual property rights therein shall remain the property of Zoom and shall be returned on demand together with any copies of such information made by the Seller or any permitted subcontractor.
24. Intellectual Property: Seller warrants that any Goods purchased hereunder do not infringe any patents granted by the United States (or jurisdiction where the Goods are produced) and covenants and agrees to indemnify, defend and hold harmless Zoom, its officers, agent, employers, successors and assigns, from and against all loss, liability and expense, including legal fees or judgments, resulting from any claim made or action brought on the ground that use or resale by Zoom, or by anyone purchasing from Zoom, of the Goods or materials hereby ordered infringes any patent, trademark, copyright, trade name, license, or other proprietary right of other parties, and such obligations shall survive acceptance of the Goods, any payment by Zoom, and the expiration or termination of this PO.
25. Taxes and Duties: Unless otherwise indicated on this PO, it (a) does not include any federal, state/provincial or local sales, use or other tax from which an exemption is available for purposes of this PO, and (b) includes all other applicable federal, state/provincial, and local taxes and customs duties in effect at the date of this PO. Seller agrees to accept and use tax exemption certificates supplied by Zoom. Taxes chargeable to Zoom shall be separately stated on all invoices. In the event that additional customs duties become due after the delivery of the Goods, the duties shall be the responsibility of the Seller. Real property contractors will include all applicable state and local sales and use tax in their contract prices and separately state taxes on their invoice.
26. Cancellation: If the Seller delays the progress of the Services performed or the furnishing of material, or fails in the performance of any of the provisions of this contract, or becomes bankrupt or insolvent, then Zoom shall have the right to cancel this PO in whole or in part by written notice to Seller whereupon Zoom shall have no liability or obligation whatsoever to Seller by reason of or resulting from such cancellation. At Zoom's sole election, Zoom may pay Seller its actual direct out-of pocket costs of performance hereunder to the date of such cancellation, as approved by Zoom, in which event, the completed Services or any work-in-process as of the date of cancellation shall become the property of Zoom, and Seller shall not be entitled to receive any further payments under this contract.
27. Termination: Zoom may, at any time, for any reason (or no reason), by written notice, terminate this PO or suspend, delay or interrupt all or any part of the Services hereunder. If Zoom terminates for any reason other than breach by Seller, Zoom will pay Seller for all costs previously incurred by Seller in good faith in connection with the Services performed. If Seller fails to comply with any material term or condition of this PO or fails to comply in a material way with the requirements of this PO, Zoom may terminate this PO in whole or in part. Seller, in such case, shall be liable to Zoom for all losses, damages, and expenses incurred, including, without limitation, (a) the excess cost of re-procuring similar Goods and Services; (b) shipping charges for any product Zoom may at its option return to Seller, including items already delivered, but for which Zoom no longer has any use because of Seller's breach; and (c) amounts paid by Zoom for the Services that have not been completed by Seller or for the Goods Zoom has received but returns to Seller. Seller shall be paid a reasonable amount calculated on a pro rata or other equitable basis as negotiated between the parties, for Goods accepted and Services satisfactorily performed or provided, and Zoom may withhold payment in an amount that it deems adequate to protect it against any loss, including losses resulting from liens and claims that may arise from lien holders. Upon notice of termination, Seller shall immediately stop all work under this PO and cause its suppliers and/or subcontractors to cease their work for this PO. Seller shall not be paid for work performed or costs incurred after receipt of notice of termination, for costs incurred by suppliers or subcontractors that reasonably could have been avoided, for overhead, anticipated profits or similar type of charge or for costs associated with any goods which are Seller's standard stock.
28. Assignment: Seller may not assign or subcontract any rights or obligations of this PO without the prior written consent of Zoom. In the event of any assignment, Seller shall remain responsible for its performance and that of any assignee under this PO. Any assignment that Seller attempts to make in violation of this PO shall be void. Notwithstanding any notice of assignment, Zoom's tender of payment to the Seller named herein, or to any person reasonably believed by Zoom to be entitled to payment, shall satisfy Zoom's obligation to pay, and in no event shall Zoom be obligated to pay twice or be liable for any damages due to failure to pay the correct party. Notwithstanding anything herein to the contrary, Zoom may assign this PO at any time to a subsidiary or affiliate of Zoom without the consent of Seller of such assignment.
29. Integration Clause: This PO, together with any written documents which may be incorporated by specific reference herein, constitutes the entire agreement between the parties and supersedes all previous communications between them, either oral or written. All such previous communications are hereby abrogated and withdrawn and no stipulation or agreements by either party or any of its officers, agents, or employees shall be binding on the other party unless contained in this PO or incorporated herein by reference as above provided.
30. Choice of law, Forum selection: These Terms and Conditions shall be governed and construed in all respects in accordance with the laws of the state or province of Zoom’s place of business in which the Services are to be performed or the Goods are to be delivered under this PO. Any legal proceeding shall be heard by a state, provincial or federal court in the state or province applicable according to this section. For this purpose, Seller agrees to accept service of process by mail and waive any jurisdictional or venue defenses otherwise available and consent to jurisdiction in said state or province. Disputes between the parties arising out of or in any way connected with the execution, interpretation and performance of this PO (including the validity, scope and enforceability of this arbitration provision) or the relationship created thereby shall, except as provided herein, may be solely and finally settled by arbitration by a single arbitrator. The arbitration proceedings shall be held in a neutral venue acceptable to both parties (or if the parties cannot agree then a neutral venue selected by the Arbitrator), and except as otherwise may be provided in this Section, the arbitration proceedings shall be conducted in accordance with the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (the “AAA”). To the extent permissible under applicable law, the parties agree that the award of the Arbitrator shall be final and shall not be subject to judicial review. Judgment on the arbitration award may be entered and enforced in any court having jurisdiction over the parties or their assets. It is the intent of the parties that the arbitration provisions hereof be enforced to the fullest extent permitted by applicable law, including the Federal Arbitration Act, 9 U.S.C. § 2. Nothing contained in this Section shall prevent the parties from seeking injunctive relief or require arbitration of any issue for which injunctive relief is sought by either party hereto.
31. Notices/Administration: Except as otherwise provided in this PO, all notices, requests and other communications that a party is required or elects to deliver shall be in writing and shall be delivered personally, or by facsimile or electronic mail (provided such delivery is confirmed), or by a recognized overnight courier service or by U.S. mail, first-class, certified or registered, postage prepaid, return receipt requested, to the other party at its address set forth on the face of this PO.
32. Non-Waiver: The waiver by a Party of any term, condition or provision herein stated shall not be construed to be a waiver of any other term, condition or provision hereof nor shall such wavier be deemed a waiver of subsequent breach of the same term, condition or provision.
33. Severability and Survivability: If any provision of these Terms and Conditions shall be invalid or unenforceable with respect to any party, the remainder of the provisions, or the application of such provision to persons other than those as to which it is held invalid or unenforceable, shall not be affected and each provision of the remainder of the provisions shall be valid and be enforceable to the fullest extent permitted by law. All of the Terms and Conditions of this PO shall survive the provision of Services and the expiration or termination of this PO.
34. Equal Opportunity: During the performance of this PO, Seller agrees to comply with all applicable federal, state/provincial, and local laws and regulations including, but not limited to, the following: Equal Opportunity (Executive Order 11246, 48 CFR 52.222-26, as amended; Section 503 of the Rehabilitation Act of 1973, 29 USC Sec. 793, as amended; the Vietnam Era Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. 4212, as amended; Title VII of the Civil Rights Act of 1964; the Americans with Disabilities Act (ADA); the Age Discrimination in Employment Act (ADEA); the Equal Pay Act (EPA)), and Affirmative Action (48 CFR 52.222-25). These rules and implementing regulations hereunder are incorporated herein by specific reference and Seller warrants that it will comply with their provisions as applicable to this PO.