1. General
The following terms and conditions, together with such terms as are set forth in the Purchase Order Form ("Form"), with such plans, specifications or other documents as are incorporated by reference , as amended in any subsequent authorized writing from Buyer, shall constitute the entire contract (the "Purchase Order") between Quest Software Inc. and its subsidiaries ("Buyer") and Supplier. If bid documents, performance specifications, technical product descriptions or other similar descriptive materials submitted by Supplier in connection with the Purchase Order, or Supplier's proposal, have been incorporated by reference, these shall not be deemed to supersede any contrary requirements of Buyer, but to the extent that such materials are not inconsistent with Buyer's requirements, they shall constitute a part of the basis of this agreement. If this Purchase Order is construed as an offer, this offer expressly limits acceptance to the terms of this offer and notice of objection to any different or additional terms in any response to this offer is hereby given. If this Purchase Order is construed as an acceptance of an offer, this acceptance is expressly conditioned upon the offeror's assent to any different or additional terms contained or referenced in this Purchase Order. If this Purchase Order is construed as a confirmation of an existing contract, the parties agree that this confirmation states the exclusive terms of any contract between the parties. This Purchase Order shall be deemed to have been accepted by the Supplier upon receipt by the Buyer of any writing, including a writing transmitted by fax or other means of electronic transmission, indicating acceptance, or by any of the following: (i) shipment of the goods or any portion thereof, (ii) commencement of any work on site or (iii) performance of any services hereunder.
2. Electronic/Facsimile Transmission
If this Purchase Order is transmitted by fax or by other means of electronic transmission, such transmission shall have the legal significance of a duly executed original delivered to the Supplier, but only if the Transmit Terminal Identification on the Form includes the notation "Quest Software Inc."
3. Payment
Discount terms are as set forth in the Form. If no terms are specified, the net amount shall be payable within 60 days after the later of (i) delivery and acceptance of goods or other performance conforming with the terms of this Purchase Order and (ii) receipt of accurate invoicing (note: inaccurate invoices received from supplier will be returned unpaid). Except as otherwise provided in the Purchase Order, the price includes all applicable taxes and duties. Unless expressly otherwise provided in the Form, Buyer shall not be liable for any shipping, handling, fuel surcharges or similar fees.
4. Time
If delivery or completion dates cannot be met, Supplier shall inform
Buyer immediately. Such notice shall not, however, constitute a change to
the delivery or completion terms of this Purchase Order unless Buyer
modifies this Purchase Order in writing. If any item is not received or if
any element of the work is not completed by the date specified, the Buyer,
at Buyer's option and without prior notice to Supplier, may either approve
a revised date or may cancel this Purchase Order and may obtain such goods
or work elsewhere and in either event the Supplier shall be liable to the
Buyer for any resulting loss incurred by the Buyer. Supplier's sole remedy
for a delay caused by Buyer shall be an extension in the time for
Supplier's performance equal to the duration of Buyer's delay. Supplier
shall not be liable for damages resulting from Supplier's failure to
deliver or complete, or for delays in delivery or completion, caused
solely by strikes not caused by or within the control of Supplier,
lock-outs not caused by or within the control of Supplier, fires, war or
acts of God. TIMING OF DELIVERY AND/OR PERFORMANCE OF THE WORK IS OF THE
ESSENCE OF THIS PURCHASE ORDER.
5. Improper
Performance and Disputes
In addition to other remedies provided by law, Buyer reserves the right to reject any goods or to revoke any previous acceptance and to cancel all or any part of the Purchase Order if Supplier fails to deliver all or any part of the goods or perform any of the work in accordance with the terms and conditions of this Purchase Order. Acceptance of any part of the Purchase Order shall not bind the Buyer to accept any future shipments or work, nor deprive it of the right to return goods already accepted. At Buyer's option, if Buyer so elects in its sole discretion with regard to any particular dispute, any dispute arising in connection with this Purchase Order shall be resolved by arbitration in California in accordance with the rules of the American Arbitration Association; and all disputes shall otherwise be resolved in and only in the Court of Orange County, CA as the exclusive judicial forum. BUYER AND SELLER WAIVE THEIR RIGHT TO A JURY TRIAL WITH REGARD TO ANY DISPUTE ARISING IN CONNECTION WITH THIS PURCHASE ORDER.
6. Warranty
Supplier expressly warrants all (i) goods delivered under this Purchase Order to be new and free from defects in material and workmanship and to be of the quality, size and dimensions ordered and (ii) work performed under this Purchase Order to be in conformity with all plans, specifications and other data incorporated as part of this Purchase Order. Notwithstanding any limitation of warranty, Supplier further represents and warrants that the supply, quality and fitness for the purpose of the goods or services will not be impaired, disrupted or interrupted in whole or in part by the occurrence of any leap year. These express warranties shall not be waived by reason of acceptance or payment by the Buyer. This Purchase Order incorporates by reference all terms of the Uniform Commercial Code as adopted in the state of California (the "UCC") providing any protection to Buyer for goods, including but not limited to all warranty protection (express or implied) and all of Buyer's remedies under the UCC. All goods and work shall also be subject to any stricter warranties specified in the Purchase Order or in other materials incorporated by reference.
7. Risk of Loss
Unless the Purchase Order expressly states otherwise, all goods shall be shipped FOB: the "Ship to" location designated in the Form. Risk of loss shall not pass to Buyer until goods called for in this Purchase Order actually have been received and accepted by the Buyer at the destination specified herein. Supplier assumes full responsibility for packing, crating, marking, transportation and liability for loss and/or damage even if Buyer has agreed to pay freight, express or other transportation charges.
8. Indemnity and Hold Harmless
From and after the date of this Purchase Order, the Supplier agrees to indemnify, defend and hold harmless the Buyer, its affiliates and subsidiaries and each of their employees, officers, directors and agents (“Indemnified Party”) from any and all claims and liabilities, regardless of by whom such claim or liability may be asserted, for personal injury (including death), or loss or damage to property, or otherwise that may result directly or indirectly from the use, possession or ownership of the goods or from the services provided by Supplier pursuant to this Purchase Order.
With regard to Supplier's obligation to defend, the Buyer shall have the right to select the legal counsel whom Supplier shall provide to defend any Indemnified Party, subject to Supplier's approval of the qualifications of such legal counsel and the reasonableness of counsel's hourly rates as compared to the rates of attorneys with similar experience and qualifications in the relevant area of legal expertise and in the jurisdiction where the claim will be adjudicated. If the Buyer elects, in its sole discretion, to retain separate legal counsel, in addition to or in lieu of the counsel to be provided by Supplier, then all costs and expenses incurred by the Buyer for such separate counsel shall be borne by the Buyer and the Supplier shall reasonably cooperate with the Buyer and its separate legal counsel in the investigation and defense of any such claim or action. Supplier shall not settle or compromise any claim or action giving rise to Claims in a manner that imposes any restrictions or obligations on Buyer without Buyer's prior written consent. If the Buyer elects to require that Supplier defend a Claim pursuant to this paragraph, and Supplier fails or declines to assume the defense of such Claim within thirty (30) days after notice thereof, the Buyer may assume the defense of such Claim for the account and at the risk of Supplier, and any liabilities related thereto shall be conclusively deemed a liability of Supplier. The indemnification rights of the Indemnified Parties contained herein are in addition to all other rights which such Indemnified Party may have at law or in equity or otherwise.
9. Assignment/Subcontracting
Neither party shall have any right to assign this Purchase Order or any benefits arising from this Purchase Order without prior written consent of the other and, unless otherwise agreed upon in writing, the rights of any assignee shall be subject to all set-offs, counterclaims, and other comparable rights arising hereunder. Notwithstanding the foregoing, Buyer shall have the right to assign this Purchase Order or any benefits arising from this Purchase Order, without the need to obtain consent, to an affiliate or subsidiary of Supplier or to a successor following a merger, acquisition, asset sale or change of control, or to an affiliate of Buyer. Supplier shall not, except in the case of raw materials, castings, forgings or rough welded structures, or standard commercial goods, or except as otherwise agreed in writing by the Buyer, delegate or subcontract the work on any item of material or service to be delivered or performed under this Purchase Order.
10. Insurance
In connection with the Purchase Order, Supplier, at its own cost and expense, shall obtain and maintain in force during the term of this Purchase Order, the following insurance coverage:
- A policy of workers' compensation insurance, in amounts required by law, covering all officers and employees of Supplier who are in any way engaged in or connected with the Purchase Order, and employer's liability insurance in an amount of not less than Five Hundred Thousand Dollars ($500,000). Supplier shall require its agents, sub-suppliers and subcontractors, who are in any way engaged in or connected with the Purchase Order to maintain the same insurance as required herein of Supplier.
- A policy of commercial general liability insurance with broad form property damage endorsement, personal injury and products completed operations coverage, affording protection in an amount of not less than Two Million Dollars ($2,000,000) per incident and in the aggregate, with respect to personal injury, death, or damage to property.
- If this Purchase Order contemplates professional services, a policy of professional liability insurance, including errors and omissions, affording protection of not less than One Million Dollars ($1,000,000) per incident and One Million Dollars ($1,000,000) in the aggregate.
- A policy of comprehensive automobile liability insurance covering the operation of all motor vehicles used by Supplier or its agents in connection with this Purchase Order, affording protection in an amount of not less than One Million Dollars ($1,000,000) combined single limit with respect to personal injury, death, or damage to property.
All of these insurance policies shall be issued by insurance companies with an AM Best rating of "A" or higher and a financial strength rating of VII or higher, or equivalent ratings provided by a disinterested, generally recognized rating agency, which companies shall be licensed or permitted to conduct business. The commercial general liability policy shall name Quest Software Inc. as an additional insured, and shall be written as primary coverage and not contributing with or in excess of any coverage that the Buyer may carry. Upon request, Supplier shall furnish to Buyer a current certificate of insurance for each of the policies required above. Insurance coverage(s) provided under this Purchase Order shall not limit or restrict in any way the liability of Supplier arising under or in connection with this Purchase Order. Such insurance shall not be canceled or terminated without ten (10) days prior written notice of any cancellation or termination.
11. Examination of Records
The Supplier agrees that Buyer, or any of their duly authorized representatives, shall have access to and the right to examine any pertinent books, documents, papers and records of the Supplier involving transactions related to this Purchase Order to the extent necessary to verify the nature and extent of costs incurred under this Purchase Order until the expiration of two (2) years after final payment under this Purchase Order. The preceding sentences shall not apply if this Purchase Order does not involve a sum in excess of One Thousand Dollars ($1,000).
14. Compliance with Laws and Regulations
The Supplier agrees to comply with all applicable federal, state, and local laws and regulations.
15. Termination Without Cause
Buyer, in its sole discretion and without cause, may terminate this Purchase Order, in whole or in part, at any time without incurring liability to Supplier for lost profits, or any other costs or damages, other than the proportionate value of the purchase price for work completed on site or goods delivered. Payment due shall be a percentage of the purchase price equal to the percentage of the work completed and/or any unit prices in the purchase price specified for goods delivered. Supplier's warranties, and Supplier's liability for defective or non-conforming work or goods, , shall survive termination and remain in full force and effect.
17. Confidentiality and Privacy Requirements
The parties agree to keep all information and/or data received or obtained from the other party confidential and not to disclose such information to any third party.
18. Miscellaneous
The parties hereby incorporate the requirements of 41 C.F.R. 60-1.4 (a) (7), 60-250.5 and 60-741.5, if applicable.