Purchase of Goods and Services
Effective Date: 7/22/2016
To the extent the parties have a written agreement signed by both parties governing the subject matter of the Purchase Order, such agreement shall govern the Purchase Order and these terms and conditions shall have no effect.
These Terms and Conditions for the Purchase of Goods & Services form part of the agreement for the purchase as set forth in the Purchase Order to which they are referenced (collectively the “Agreement”) and are entered into by and between Active and Supplier. Your relationship with Active and Active’s use of your products and services are subject to this Agreement and is made between you and Active. Capitalized terms are defined in Section 1 below, unless otherwise defined within the body of this Agreement or the applicable Purchase Order. You represent and warrant that you have the necessary and full right, power, authority, and capability to accept this Agreement, to bind your organization, and to perform your obligations hereunder. Any of the following constitute Supplier’s unqualified acceptance of this Agreement: (A) acknowledgement of the Purchase Order; (B) furnishing any part of the Goods or Services under the Purchase Order; (C) acceptance of any payment for the Goods or Services; or (D) commencement of performance under the Purchase Order. By accepting this Agreement, you agree as follows:
For purposes of this Agreement, each word or phrase listed below shall have the meaning designated. Other words or phrases used in this Agreement may be defined in the context in which they are used, and shall have the respective meaning there designated. All definitions below or elsewhere in this Agreement apply to both their singular and plural forms, as the context may require. The terms “herein,” “hereunder,” “hereof” and similar expressions refer to this Agreement. “Section” refers to a section herein. The word “including” means “including without limitation,” unless otherwise stated. All references to “days” are to calendar days, unless otherwise specified.
“Affiliate” means any entity that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with a party to this Agreement.
“Active” shall refer to Active Network, LLC, or any of its Affiliated entities.
“Confidential Information” means all information, in any form, furnished or otherwise made available, directly or indirectly, by virtue of the provision of Goods or Services under this Agreement, that is not generally known outside of the disclosing party, including all information concerning the operations, affairs, and businesses of the disclosing party, its clients, employees, or Affiliates.
“Deliverables” means all documents, products, and materials developed and/or supplied by Supplier as a part of the Services, or as otherwise supplied by Supplier to Active under or in connection with this Agreement, as may be set out in the Purchase Order.
“Goods” means any item of merchandise or product provided to Active by Supplier under or in connection with this Agreement.
“Intellectual Property Rights” means copyright, database rights, patents, registered or unregistered design rights, moral rights, registered or unregistered trademarks, and all other industrial, commercial or intellectual property rights existing in any jurisdiction in the world and all the rights to apply for the same.
“Purchase Order” means the ordering document issued by Active to Supplier indicating the type, quantities, and agreed fees for Goods or Services to be provided by Supplier in accordance with this Agreement.
“Services” means intangible commodities such as the provision of human effort supplied to Active by Supplier under or in connection with this Agreement and any Deliverables.
“Supplier” shall refer to the entity listed under the “To:” block on the first page of the Purchase Order under which supplies and/or services are being ordered.
2.1 Active may request certain Goods and/or Services to be provided by Supplier under a Purchase Order. The terms and conditions of this Agreement shall govern such requests and Supplier’s provision thereof. No other terms and conditions, including those contained in Supplier’s standard printed terms and conditions, Supplier’s order acknowledgement, invoices, shrink-wrap, click-wrap (or other electronic agreement), or any other terms and conditions that may be furnished in conjunction with the Goods or Services, shall have any application or effect upon the Goods or Services or this Agreement and are expressly rejected. Active may cancel a Purchase Order at no charge prior to the receipt of the Goods or Services.
2.2 Active’s purchasing representative may at any time, by written order, without notice to any surety, make changes or additions within the general scope of the Purchase Order in any one or more of the following: (A) drawings, designs, statement of work or specifications; (B) method of shipment or packing; (C) place of inspection, delivery or acceptance; (D) quantities, where reasonable; (E) delivery schedule, where reasonable; and (F) the amount of Active furnished property. If any such change causes an increase or decrease in the cost of, or the time required for, performance of this Purchase Order, whether changed or not changed by any such written order, Supplier shall notify Active in writing immediately and an appropriate equitable adjustment will be made in the price or time of performance, or both, by written modification of the Purchase Order. Any claim by Supplier for such adjustment must be asserted within fifteen (15) days, or such other period as may be agreed in writing by all the parties, after Supplier’s receipt of notice of the change. Nothing contained in this paragraph shall excuse Supplier from proceeding with the contract as changed.
3.1 The parties expressly agree that time is and shall remain a material element of this Agreement and no acts of Active, including without limitation, modifications to this Purchase Order or acceptance of late deliveries, shall constitute a waiver of this clause.
3.2 Supplier will deliver acceptable Goods and Services in strict conformity with any delivery schedule and shipping instructions set forth in the Purchase Order issued to Supplier by Active. Active may return earlier deliveries at Supplier’s risk and expense. Supplier shall comply with the delivery schedule but shall not make material or production commitments in advance of such time as the Supplier reasonably believes necessary to meet the schedule without prior written approval by Active. Representatives of Active shall at all reasonable times have access to Supplier’s plant for the purpose of assuring delivery in accordance with the schedule.
3.3 If Supplier is unable to meet the required delivery schedules for any reason, other than a change directed by Active, Active shall have the option to (A) terminate this Purchase Order and Agreement, or (B) fill such Purchase Order, or any portion thereof, from sources other than Supplier and to reduce Supplier’s Purchase Order quantities accordingly at no increase in unit price, without any penalty to Active. Alternatively, Active may require Supplier to provide consideration for the late delivery. This condition shall not limit Active’s rights or remedies under the Uniform Commercial Code.
3.4 Risk of loss and title to the Goods shall pass to Active upon receipt. Supplier will deliver all Goods to Active’s designated location, freight prepaid and added to Active’s invoice or as otherwise negotiated. All items are to be suitably boxed, wrapped, or coated so as to be protected against hazards of shipment, storage, and exposure and labeled to show the Purchase Order number and delivery contact name. Itemized packing slips showing the Purchase Order number shall accompany each delivery. Active’s count shall be conclusive in the absence of a packing slip. Active shall have the right to inspect and test Goods within a reasonable time after delivery to Active. If the Services are not performed to Active’s satisfaction or the Goods are not in conformance with the specifications or Purchase Order therefore, Active shall notify Supplier within a reasonable amount of time and identify to Supplier the deficiency in Goods and/or Services. Supplier will use its best efforts to either correct and deliver to Active, at Supplier’s sole cost and as soon as practical following its receipt of notice, the corrected Goods and/or Services or, at Active’s option, credit the applicable invoice for the deficient Goods and/or Services (as applicable). Neither payment for Goods or Services nor inspection shall constitute or imply acceptance of the Goods or Services and shall in no way impair the right of Active to reject damaged, non-conforming, or defective Goods or Services, or to avail itself of any other remedy to which it may be entitled.
Whenever Supplier has knowledge that any occurrence is delaying or threatens to delay the timely performance of this Purchase Order, Supplier shall immediately give notice thereof, including all relevant information with respect thereto, to Active. Such occurrences shall include, but not be limited to (A) actual or potential labor disputes or strikes; (B) fires, floods, or unusually severe weather; (C) acts of nature; and (D) acts of the Government in either its sovereign or contractual capacity. Neither receipt of such notice by Active nor any provision of these terms and conditions will be deemed to be a waiver by Active of any of its rights under any Purchase Order, this Agreement, at law or otherwise.
Supplier shall transfer to Active any warranties, guarantees, or similar rights given by any manufacturer or supplier from whom it acquires the Goods. To the extent that such guarantee or similar rights are not transferable, the Supplier undertakes, at Active’s request, to enforce such warranties, guarantee, or rights on behalf of Active.
1. Supplier’s prices shall be exclusive of any federal, state, or local sales, use, or excise taxes levied upon, or measured by, the sale, the sales price, or the use of Goods or Services provided under this Agreement. Active shall not be responsible for any other fees or expenses related to the provision of Goods or the performance of Services, including packaging, storage, handling, or any other charges, unless otherwise agreed in writing by Active. Active will be responsible for and will pay when due all sales, use, and other taxes and similar charges based on or arising from this Agreement or its performance, imposed by any federal, state, provincial, or local government, or other taxing authority, other than taxes based on Supplier’s net income. Supplier is responsible for properly assessing all sales, use, and other taxes. Supplier shall list separately on its invoice any applicable taxes payable by Active for which Active has not furnished evidence of exemption. Notwithstanding the foregoing, Supplier shall notify client within ninety (90) days of the applicable invoice if taxes were improperly assessed; thereafter, Active shall have no obligation to remit payment to Supplier for any taxes Supplier failed to properly assess. Supplier agrees to comply with any reasonable request by Active regarding payments under protest and regarding any refunds, claims, litigation, or proceedings with respect to any such taxes and to make appropriate adjustments to afford Active the benefit of any refund or reduction in taxes.
The price payable for the Goods, Services, and Deliverables is as stated on the Purchase Order. Supplier shall submit its invoices to Active upon completion of the Services and/or delivery and acceptance (if applicable) of the Goods. Payment for Goods and Services shall be due sixty (60) days from Active’s receipt of a correct invoice therefore. For the avoidance of doubt, if Supplier does not include in such invoice a Purchase Order number, a unique invoice number, a description sufficient to identify the Goods delivered or Services performed, and any other information reasonably requested by Active, or if the amount invoiced is otherwise inaccurate, then such invoice will not be correct for the purpose of this Section and Active shall be under no obligation to pay Supplier until Supplier has provided a correct invoice. Active reserves the right to deduct from or offset against any payment to Supplier all monies due or becoming due Active from Supplier whether in connection with this Agreement or otherwise. Supplier shall have no right to charge interest or any other additional sum on any past due invoices. No variation from the price set forth in the Purchase Order nor additional charges may be invoiced without the prior written agreement of Active. Active shall be entitled to any discounts for prompt payment or volume purchase customarily granted by Supplier to its other customers. The cash discount period available to Active shall run from the date of receipt of an invoice conforming to the instructions herein or receipt of the Goods at the agreed destination, whichever occurs last. Active will be granted any price reductions applicable that occur after a Purchase Order has been issued and before the applicable Goods and/or Services are delivered.
8.1 Active may terminate this purchase order in whole or, from time to time, in part if Active determines that a termination is in its best interest. Active shall terminate by delivering to Supplier notice.
8.2 Termination of this Agreement (or any element of it) shall not affect any rights, obligations, or liabilities of either party which have accrued before termination or which are intended to continue to have effect beyond termination. In the event of any termination, Active’s obligation for payment is limited to Goods and/or Services accepted prior to the date of termination. If Active terminates this Agreement or any part of the Purchase Order, Supplier shall refund to Active any prepaid but unused fees for unperformed Services or undelivered Goods. In addition, to the extent that Active terminates this Agreement or any part of the Purchase Order, Supplier shall also refund to Active the fees paid for any interoperable Services and/or Goods (as applicable) furnished by Supplier to Active in conjunction with such unperformed Services and undelivered Goods (as applicable) that Active is unable to utilize effectively or completely as a result of the termination.
9.1 Subject to Sections 9.2 and 9.3 below, Active may terminate the Purchase Order in whole or in part, by written notice of default to Supplier if Supplier: (A) fails to deliver the Goods or to perform the Services within the time specified in the Purchase Order or any extension; (B) fails to make progress so as to endanger performance of the Purchase Order or to perform any of the other provisions of the Purchase Order and does not cure that failure within a period of ten (10) days after receipt of the notice form Active specifying Supplier’s failure to perform; or (C) becomes insolvent or makes a general assignment for the benefit of creditors, or files or has filed against it a petition of bankruptcy or for reorganization, or pursues any other remedy under any other law relating to the relief for debtors, or in the event a trustee or receiver is appointed for Supplier’s property or business; or assignment.
9.2 If the failure to perform is caused by an excusable delay, as described in the Section 4 herein, Supplier shall not be liable for any excess costs of replacing the item.
9.3 If the failure to perform is caused by the default of a subcontractor at any tier, and if the cause of the default is beyond the control of both Supplier and subcontractor, and without the fault or negligence of either, Supplier shall not be liable for any excess costs for failure to perform, unless the subcontracted Goods or Services were obtainable from other sources in sufficient time for Supplier to meet the required delivery schedule.
10.1 Supplier shall observe complete confidentiality with respect to all Confidential Information disclosed to it and shall use its best efforts and take all reasonable steps to protect such Confidential Information from any use, reproduction, publication, disclosure, or distribution except as specifically authorized by this Agreement. Supplier shall restrict disclosure of such Confidential Information to its employees, agents, and subcontractors on a need-to-know basis for the purpose of discharging its obligations to Active hereunder, and Supplier shall ensure that such employees, agents, and subcontractors are subject to substantially similar obligations as set forth herein, provided that Supplier will be responsible and liable for any breach of this Agreement by such persons. In the event of any unauthorized use, disclosure, loss of, or inability to account for any Confidential Information, Supplier shall promptly notify Active upon becoming aware thereof and shall (A) assist in remedying each unauthorized use or disclosure, and (B) will cooperate with Active in any litigation brought by Active against third parties to protect its rights in the Confidential Information. Rendering of assistance does not alleviate any obligation under this Section, nor does acceptance of such assistance constitute a waiver of any breach of this Section.
10.2 The above-stated obligations of confidentiality do not apply to the extent such information is or becomes publicly available through no breach of this Agreement by the recipient; rightfully in the recipient’s possession without obligation of confidence prior to receipt from the disclosing party; rightfully obtained from a third party having the right to disclose such information without restriction as to use or disclosure; information that the recipient can document was independently developed by the recipient without reference or use of the Confidential Information; or required to be disclosed by law, a court of competent jurisdiction, or regulatory body; provided that immediately upon receiving any such request and to the extent that it may legally do so Supplier promptly notifies Active in writing of such requirement to enable Active to seek a protective order to protect the confidentiality of such information, take action to assure confidential handling of the Confidential Information, or take such other action as it deems appropriate to protect the Confidential Information. To the extent that the receiving party must disclose Confidential Information pursuant to this Section, any such disclosure shall be limited to only that Confidential Information required to be disclosed to comply with the order of the relevant court or regulatory body.
10.3 The Confidential Information shall remain the property of Active. Except as explicitly set forth herein, neither this Agreement, nor the provision of Services hereunder, will give either party any license, ownership interest in or rights to the Confidential Information of the other party.
10.4 Supplier acknowledges that any unauthorized disclosure or use of the Confidential Information shall be considered a material breach of this Agreement and would result in irreparable harm and significant injury to Active, the degree of which may be difficult to ascertain. Therefore, it is agreed that, in addition to any other remedies that may be available to Active upon any such violation or threatened violation hereof, Active shall have the right to enforce this Agreement by seeking specific performance, injunctive relief, or by any other means available to Active at law or in equity, and Supplier hereby waives any requirement for the security or posting of any bond in connection with such enforcement.
11.1 Supplier agrees that all right, title, and interest in and to all work product, property, data, documentation, Services, Deliverables, information, or materials conceived, discovered, developed, or created by Supplier pursuant to this Agreement (collectively, the "Work Product") shall be and remain the sole and exclusive property of Active. Immediately upon the creation of any Work Product, Supplier will disclose and deliver to Active all information and data in its possession, power, or control necessary for a full understanding, application, and, where applicable, registration of the Work Product. To the greatest extent possible, any Work Product shall be deemed to be a "work made for hire" (as defined in the United States Copyright Act, 17 U.S.C.A. Section 101 et seq., as amended) and owned exclusively by Active. Supplier hereby unconditionally and irrevocably transfers and assigns to Active all right, title, and interest in or to any Work Product.
11.2 To the extent that any of the rights described above do not vest in Active by operation of law or under this Agreement, Supplier hereby exclusively, unconditionally, and irrevocably transfers and assigns all present and future Intellectual Property Rights in the Work Product, including, but not limited to, the exclusive use, marketing, and distribution rights to Work Product. Supplier irrevocably releases any and all rights it may have in the Work Product, now or in the future, including any Intellectual Property Rights therein. Supplier agrees to render to Active any and all assistance reasonably required to effectuate and protect Active’s ownership rights provided herein, including, executing all applications relating to Intellectual Property Rights, domestic or foreign, assignments and other papers necessary to secure and enforce rights relating to the Work Product. Supplier irrevocably waives any and all moral rights or any rights to similar effect in any country or at common law that Supplier may have with respect to the Intellectual Property Rights, to the extent those rights have not been assigned above.
11.3 For the avoidance of doubt, the parties agree that Supplier retains all ownership rights to Supplier Pre-Existing Intellectual Property Rights. To the extent that any Supplier Pre-Existing Intellectual Property Rights are contained in any Work Product or used in connection with the Services, Supplier grants Active an irrevocable, non-exclusive, worldwide, perpetual, fully paid up license to use the Supplier Pre-Existing Intellectual Property Rights included in any Work Product or used in connection with the Services provided to Active in order to achieve the intended benefit of the Services or Work Product so provided. Supplier shall acquire no rights or interest in any Intellectual Property Rights of Active, including any names, logos, product names, service marks, and any other identifying names or marks of Active.
11.4 All Active information, property, and materials made available to Supplier in connection with this Agreement (“Active Materials”) shall be and remain the property of Active and Supplier shall: (A) use any Active Materials, including any Intellectual Property Rights contained therein as authorized in writing for the specified purposes that Active so authorizes and for no other purposes whatsoever; (B) be responsible for any loss or damage to the Active Materials while in the possession or control of Supplier; and (C) return the Active Materials to Active or otherwise dispose of it as directed by Active and by this Agreement.
11.5 Subject to the terms hereof, Supplier shall provide Services as described in the Purchase Order. Supplier shall not use any third party Intellectual Property Rights, including any open source materials in performing the Services or in the development of any Deliverables or materials hereunder, without the prior written approval of Active.
11.6 Supplier may not use a third party (also referred to herein as a “subcontractor”) to perform any of its obligations hereunder without the prior written consent of Active. Active's consent to the use of a subcontractor shall not relieve Supplier of any liability or obligation hereunder, and Supplier shall be responsible and liable for all acts, omissions, defaults, negligence or willful misconduct of any such subcontractor and for such subcontractor’s compliance with the terms and conditions of this Agreement. Supplier is responsible for the supervision, direction, control, and compensation of its employees and permitted subcontractors. Active may require that Supplier remove any Supplier employee, subcontractor, or personnel from an assignment with Active at any time for any lawful reason, and Supplier will immediately remove such person and assign a suitable replacement, as needed.
1.1 Without prejudice to any other right or remedy available to Active, Supplier represents and warrants to Active that: (A) it has full authority and sufficient rights to grant and convey the rights granted to Active under this Agreement; (B) it has and continues to hold all necessary licenses, permits, consents, and agreements necessary for the provision of the Goods and Services hereunder;(C) it is skilled and experienced in providing the Services and shall perform the Services in a good and workmanlike manner using qualified personnel having a level of skill necessary to meet the requirements of this Agreement and the Purchase Order; (D) all Goods and Services conform to the applicable specifications, drawings, or descriptions furnished by Active, provided by Supplier, or detailed in the Purchase Order; (E) the sale or use of the Goods and Services by Active will not infringe any Intellectual Property Rights of any third party; (F) all Goods it supplies shall be new, of satisfactory quality, and fit for any purpose held out by Supplier or made known to Supplier by Active; (G) the Goods and Services provided shall be free from all material defects in design, material, and workmanship, and will comply fully with all relevant statutory enactments and regulations in force from time to time; and (H) Supplier shall at all times be in compliance with all applicable international, federal, state, and local laws and regulations relating to its performance hereunder. Supplier shall be responsible for any and all fees, penalties and interest, which result from Supplier's failure to comply with such laws and regulations.
2. Active is an equal opportunity employer and federal contractor or subcontractor. Consequently, the parties agree that, as applicable, they will abide by the requirements of 41 CFR 60-1.4(a), 41 CFR 60-300.5(a), and 41 CFR 60-741.5(a) and that these laws are incorporated herein by reference. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. These regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability. The parties also agree that, as applicable, they will abide by the requirements of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), relating to the notice of employee rights under federal labor laws.
3. To the fullest extent permitted by law, Supplier shall defend, indemnify, and hold harmless Active, its Affiliates, and Active’s landlord at the premises where operations will be performed (and the officers, directors, employees, contractors, and agents of each of them), from and against all damages, liabilities, claims, losses, costs, and expenses (including reasonable attorney and expert witness fees and expenses) (collectively, “Damages”), which the indemnified parties may incur, suffer, become liable for, or which may be asserted or claimed against the indemnified parties as a result of the acts, errors, or omissions of Supplier, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable arising out of this Agreement. The foregoing indemnification obligation shall include a misrepresentation or breach of any warranty or obligation set forth in this Agreement or claim or threatened claim by any third party that the Services or Goods infringe the third party’s copyright, trade secret or other intellectual property right. Active may participate in the defense of any claim with counsel of its choosing, at its own expense. Supplier will not enter into any settlement of a claim without the prior written consent of Active.
4. Supplier will maintain at its own cost and expense (and shall cause any permitted subcontractor to maintain) insurance policies providing insurance of the kind and in the amounts generally carried by a reasonably prudent supplier in the industry, with one or more reputable insurance companies licensed in the state(s) where the Goods and/or Services are to be provided including worker’s compensation with statutory limits and general liability coverage with a $1,000,000 limit. Supplier shall upon request, from time to time, provide Active with such evidence of insurance and payment of premiums in connection therewith, as Active may reasonably require.
5. Supplier shall not use any hazardous material in performing the Services, unless, and only if, essential for furnishing Services. Additionally, any Goods supplied or installed under this Agreement shall be formulated, designed, constructed, finished, and packaged as to be safe and without risk to health. Supplier agrees, before delivery, to furnish to Active in writing a list of any harmful or potentially harmful properties or ingredients in the Goods supplied, whether in use or otherwise, and shall update Active, from time to time, concerning any changes in such properties or ingredients. Should the Services include the disposal of any obsolete or other equipment considered hazardous material or waste, Supplier shall defend, indemnify, and hold harmless Active, its Affiliates, and Active’s landlord at the premises where operations will be performed (and the officers, directors, employees, contractors, and agents of each of them), from and against any and all Damages arising out of such disposal.
6. Whenever Supplier has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of any order for Goods or Services, Supplier shall immediately give written notice thereof to Active and include all relevant information. Supplier agrees to insert the substance of this Section in any subcontract hereunder.
7. All Supplier personnel who work on-site at an Active facility for more than one (1) day or who will have access to an Active network, must pass a five panel drug screen, criminal background check, and general background investigation. The general background investigation will include, without limitation, verification of the worker’s qualifications and credentials, previous employment, and Social Security Number. Supplier accepts and agrees to implement screening as required above prior to such person providing any Services under this Agreement. Such screening records may be audited by Active. Supplier shall not be required to screen any individual where it is prohibited by law. Supplier hereby agrees to indemnify, defend, and hold Active harmless against any and all Damages arising out of its obligations under this Section.
8. Supplier shall not disclose the existence of this Agreement or otherwise use Active’s name or logo in any of its advertising or marketing materials (including any press release or statement) without prior written consent from Active, which may be withheld in Active’s absolute discretion.
2.1 20.1 Independent Contractor. It is the express intention of Active and Supplier that Supplier perform the Services as an independent contractor to Active. Nothing herein shall be construed or implied to create a partnership, agency, joint venture, employer-employee, or any other relationship between Active and Supplier, its personnel, and/or its subcontractors, if any. Neither party has the authority to act in the name or on behalf of, or otherwise bind, the other party in any way. Supplier agrees to furnish (or reimburse Active for) all tools and materials necessary to perform its obligations under this Agreement and shall incur all expenses associated with performance, with the exception of any expenses, agreed in writing, to be paid or reimbursed by Active. Supplier acknowledges and agrees that Supplier is obligated to report as income all compensation received by Supplier pursuant to this Agreement. Supplier agrees to and acknowledges the obligation to pay all applicable self-employment and other taxes on such income.
2.2 20.2 Benefits. Supplier hereby acknowledges and agrees that Supplier is not an employee of Active, and Supplier agrees that Supplier, its personnel, and its subcontractors, if any, shall not be entitled to receive or participate in any of Active’s benefits programs (including, without limitation, any health insurance or other benefit program that exists currently or that may exist in the future). Supplier hereby (and agrees to cause its personnel and subcontractors, if any, to also) expressly waives, releases, and forever discharges Active from any claims, rights, or entitlements Supplier, its personnel and/or subcontractors, if any, may have or allege for any such benefits program, plans, or arrangements. Supplier agrees to inform its personnel and subcontractors, if any, of the provisions of this Section and those of the rest of the Agreement.
20.3 Taxes Supplier further acknowledges and agrees that Active shall have no obligation under federal, state, local, or other applicable law with respect to any liability or obligation that Active would otherwise incur were Supplier’s, its personnel’s, or its subcontractors’, if any, relationship with Active to be determined to be an employer-employee relationship, and that the total commitment and liability of Active with respect to this Agreement shall be limited to the compensation and expenses as set forth in the Purchase Order. All taxes, contributions, and tax returns applicable to any amounts paid by Active to Supplier hereunder shall be the liability and sole responsibility of Supplier, and Active shall not withhold or pay any amounts relating to any taxes or contributions imposed by any governmental or other public agency with respect to any amounts paid to Supplier pursuant to this Agreement, including, but not limited to, any federal, state, or municipal income tax, Social Security, unemployment insurance, state disability insurance, or worker’s compensation. Supplier shall be liable for all applicable income taxes, Social Security, Medicare, unemployment insurance contributions and similar payments related to itself, its personnel, and its subcontractors, if any. Supplier hereby agrees to indemnify, defend, and hold Active harmless against any and all such taxes, payments, and contributions, including penalties and interest.
21.1 Non-exclusive This Agreement shall not be construed as an exclusive contract. Active may fulfill its requirements from the supplier(s) of its choice. This Agreement does not constitute a warranty, guarantee, or commitment to purchase any minimum or maximum amount of services.
21.2 Integration. This Agreement constitutes the complete agreement of the parties relating the subject matter hereof and supersedes any and all prior or contemporaneous agreements or understanding relating to the same subject matter. Neither party shall be bound by, or liable to the other party for, any representation, promise or inducement made by any agent or person on behalf of such party that is not contained in this Agreement. No amendment or modification of this Agreement shall be valid or binding unless it is made in writing and signed by an authorized representative of each party, except where the writing is a Purchase Order from Active’s electronic procurement system or an authorized Active purchasing agent and expressly references this Agreement.
21.3 Order of Precedence. The various documents constituting this Agreement shall, insofar as is possible, be interpreted so as to be consistent with one another. In the event that a conflict or ambiguity arises in the interpretation of this Agreement, said conflict or ambiguity shall be resolved in accordance with the following order of precedence, with the first listed item having a higher precedence than later listed items: (A) the Purchase Order, (B) the Terms and Conditions for the Purchase of Goods and Services, (C) statement of work (if included), (D) specifications (if included); and (E) drawings (if included).
21.4 Waiver. A waiver of any breach or provision of this Agreement shall only be effective if it is made in writing and signed by an authorized representative of the party who is waiving the breach or provision. Any waiver so given will not be deemed a waiver of that provision or any subsequent breach and shall not affect the enforceability of any other term of this Agreement.
21.5 Severability. If any provision of this Agreement is held to be unenforceable by a court of competent jurisdiction for any reason whatsoever, (A) the validity, legality, and enforceability of the remaining provisions of this Agreement (including without limitation, all portions of any provisions containing any such unenforceable provision that are not themselves unenforceable) shall not in any way be affected or impaired thereby, and (B) to the fullest extent possible, the unenforceable provision shall be deemed modified and replaced by a provision that approximates the intent and economic effect of the unenforceable provision and the Agreement shall be deemed amended accordingly.
21.6 Remedies. If either party fails to exercise a right or remedy that it has or which arises in relation to this Agreement, such failure shall not prevent that party from exercising that right or remedy subsequently with respect to that or any other incident.
21.7 Interpretation. Any reference to a statutory provision includes a reference to any modification or re-enactment of it from time to time. Where any matter is to be agreed, such agreement must be recorded in writing. The headings and pronouns contained herein are for convenience and ease of reference only and shall not affect the construction or interpretation of this Agreement. References to this Agreement shall include the Purchase Order.
21.8 Assignment. Supplier shall not assign, delegate, or otherwise transfer this Agreement or any of its rights or obligations under it, or purport to do any of these things, or any interest relating to this Agreement or subcontract any or all of its obligations under this Agreement without the prior written approval of Active. Any attempted assignment, delegation or transfer by Supplier without such approval shall be void. Active may assign, transfer, sub-license or deal in any other manner with this Agreement or any of its rights under it to its Affiliates, subsequent owner, or entity having a controlling interest in the business of Active without the prior written consent of Supplier. This Agreement is binding upon and inures to the benefit of the parties and their permitted successors and assigns.
21.9 Audit. Supplier will maintain complete and accurate records relating to Supplier’s performance under this Agreement. During the performance of this Agreement and for a period of three (3) years following termination hereof, Active or its designated agent will, during normal business hours, have reasonable access and the right to examine any of Supplier’s books, documents, and records pertaining to Supplier’s performance of this Agreement. As a condition of such audit, Active agrees to provide reasonable notice to Supplier and shall keep, and ensure that its designated agent agrees to keep, Supplier’s confidential information in confidence and will not disclose any confidential information obtained solely through the audit without the express written consent of Supplier.
21.10 Notice. Any notices (including requests, demands or other communication) to be sent by one party to the other in connection with this Agreement shall be in writing and shall be delivered personally, by reputable overnight courier, by certified mail (or equivalent service offered by the postal service from time to time), or by facsimile transmission, to the addresses of each party as set out in the first paragraph of the first page of this Agreement or as otherwise notified in accordance with the provisions of this Section. Either party may change its notice address by giving the other party written notice of such change in the manner specified above. Notice shall be deemed to have been duly given as follow: (A) upon delivery if delivered personally or by reputable overnight courier; (B) five (5) days after the date of posting if sent by certified mail; or (C) if sent by facsimile transmission, when transmitted, provided that a confirmatory copy is sent by special delivery by the end of the next business day after transmission.
21.11 Third Party Rights. Except as expressly set forth herein, persons or entities who are not a party to this Agreement shall not have any rights under this Agreement and the parties hereby agree that nothing in this Agreement shall be construed as creating a right that is enforceable by any person or entity that is not a party to this Agreement or a permitted assignee of such party.
21.12 Governing Law. This Agreement will be governed by the laws of the State of Texas in the United States of America, as such laws apply to contracts between Texas residents performed entirely within Texas. Any action or proceeding arising from or relating to this Agreement must be brought exclusively in a federal or state court having jurisdiction over the state of Texas, and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding.
21.13 Survival. The provisions of this Agreement that, by their nature and content, must survive the completion, rescission, termination or expiration of this Agreement in order to achieve the fundamental purposes of this Agreement, shall so survive and continue to bind the parties hereto.