BDO USA, P.C. STANDARD TERMS AND CONDITIONS FOR SUPPLIERS OF NON PROFESSIONAL SERVICES
1.General. These Standard Terms and Conditions (these “Terms”) and any attachments, exhibits, instructions or other information, whether attached or incorporated by reference, are the sole and exclusive agreement between BDO USA, P.C., a Delaware limited liability partnership, and the seller (“Seller”) identified in an Order (“Order”) issued by Buyer for goods and/or services described in the Order (the “Products” and/or “Services”). The term "Supplies" includes both Goods and Services. The Order, along with any written quotation, proposal, contract or agreement from Seller, will be collectively referred to in these Terms as the “Proposal.” Notwithstanding anything in the Proposal to the contrary, the Proposal is subject to the provisions of these Terms, which supersede and control over all inconsistent terms or language in the Proposal. These Terms and the Proposal together constitute the “Contract.” Unless otherwise stated in a separate written document signed by authorized representatives of both Buyer and Seller, the Contract will be deemed to relate to and govern all written documentation relative to the Products and/or the Services provided by Seller to Buyer, even without specific reference to this Contract. The terms of this Contract will supersede any prior course of performance, course of dealing and usage of trade between the Buyer and Seller. Purchase Orders and other associated purchasing documents will be valid without signature if issued by Buyer through its computer system or other electronic means. The reference to Purchase Order herein includes a blanket Purchase Order, Release, or similar documents issued by Buyer to Seller.
2.Acknowledgement. Within forty-eight (48) hours after receipt of an Order, Seller shall provide written confirmation to Buyer stating Seller’s acceptance of the Order and the delivery date that the Products and/or Services will be provided to Buyer (an “Acknowledgement”). All Acknowledgements shall be sent by email to [email protected] or to such other number or email address designated in the Order.
3.Acceptance. Acceptance of this Contract is expressly limited only to the terms of this Contract. Upon acceptance of this Contract by Seller, this Contract shall constitute the entire agreement between the parties and shall not be modified except by a written agreement signed by authorized representatives of both parties. Any additional or different terms are excluded and not binding on Buyer. Seller’s Acknowledgement or shipment or delivery of the Products or provision of the Services shall constitute acceptance to these Terms notwithstanding any additional or different terms contained in any documentation submitted by Seller, including, but not limited to, any acknowledgements, invoices or packing slips.
4.Changes. Buyer may at any time, by written notice to Seller, change the Contract as to (i) designs or drawings of or specifications for the Products and/or Services, (ii) time or place of delivery or performance, (iii) method of packing or shipment, or (iv) quantity of the Products and/or extent of the Services. Any such changes must be authorized in writing by Buyer’s procurement department. If a change to the Contract causes a change (which may be an increase or decrease) in Seller's cost or time of performance, the parties will consider an equitable adjustment (which may be an increase or decrease) in the price or time for delivery or performance, or both, if either party gives the other a written request justifying an adjustment within twenty (20) days after Buyer notifies Seller of the change. If such adjustment is not agreed upon, Buyer may withdraw the change to the Contract or Seller may decline to provide the Products and/or Services subject to the change.
5.Price and Payment. The purchase price for the Products and/or Services specified in the Proposal will govern. If the purchase price is unspecified in the Proposal, Seller agrees that the purchase price for such Products and/or Services will be equal to Seller’s most favorable rates charged to Seller’s other customers given the nature of the Products and/or Services and the quantities ordered by Buyer, but in no event higher than the price that Seller last quoted or charged to Buyer. Buyer will not be required to pay any sales, use or other taxes arising because of Buyer’s purchase of the Products and/or Services from Seller. Unless otherwise specified in the Proposal, Buyer will pay the purchase price for the Products and/or Services within sixty (60) days after the latest to occur of the following events:(i)the actual date of delivery of conforming Products or performance of conforming Services; (ii) the actual date of operative installation of conforming Products which are equipment used by Buyer; and (iii) the date of Seller's Invoice that complies with the provisions of Section 8 below. Buyer’s payment of the purchase price does not indicate or constitute its acceptance of the Products or Services, does not constitute an acknowledgement that the Products and/or Services conform to the Contract, and will not affect any warranties with respect to the Products and/or Services. The Buyer shall have no obligation to pay any expenses under this Contract unless Buyer agrees in a separate signed writing.
6.Delivery. The terms and prices for all Products purchased under this Contract are delivered duty paid to Buyer’s location, which location is either the Buyer’s address stated above or another location designated by Buyer (the “Delivery Site”). Seller will retain legal title to, and bear all risk of loss, for any Products delivered pursuant to the Contract until such Products are received at the Delivery Site and Buyer has accepted such Products in accordance with the Contract. Seller is responsible for all transportation costs (including, without limitation, marking, packaging, loading, shipping, unloading and insurance costs), duties, taxes, charges and fees related to any Products. Seller must include sufficient information of the Order on the packing slip and other supporting documentation at the time of delivery, including, when applicable, all manufacturer model and serial numbers and identification of necessary consumable items for the Products. Seller will attach a packing slip to the outside of each package, including the applicable Order number, all bills of lading or express receipts. Only upon twenty-four (24) hours' prior written notice and at reasonable business hours may Seller enter upon Buyer’s premises for the purpose of inspecting any Productor providing Services, and such entry and presence must be in accordance with Buyer’s policies and procedures.
7.Inspection Period. Buyer will have a reasonable time, but at least thirty (30) days after the later of: (i) receipt of the Products; and (ii) operative installation of Products which are equipment used by Buyer, to inspect and test the Products (the “Inspection Period”). During the Inspection Period, if Buyer determines in its sole discretion that the Products are defective or otherwise not in conformity with the requirements of this Contract, Buyer may, at its option, return the nonconforming Products to Seller at Seller’s expense (including packaging and shipping). Upon Buyer’s rejection of any or all of the Products under this Section 7, Seller will promptly provide a replacement Product or complete refund if Buyer has paid Seller for such defective Product, as Buyer elects. Buyer’s rights under this Section7 exist in addition to any other rights that Buyer may have under this Contract, any applicable warranty, or under applicable law.
8.Invoices. Seller will submit an invoice to Buyer’s Accounts Payable Department (an “Invoice”) at [email protected] within thirty (30) days of delivery of any Product and/or provision of any Services pursuant to this Contract. Each Invoice will contain the following information: (i) the Purchase Order number; (ii)Buyer’s account number; (iii) the item, catalog, or part number; (iv) description of the Products and/or Services, including sizes, quantities, unit prices (including applicable discounts) and the total purchase price for the Products and/or Services; (v) the applicable shipping information; and (vi) any other information reasonably requested by Buyer. Seller will also provide a copy of the packing slip and/or shipping manifest if requested by Buyer.
9.Representations and Warranties. Seller represents and warrants to Buyer that: (i) Seller has all necessary experience, qualifications, expertise, authority, licenses, registrations and permits to enable it to perform its obligations under the Contract, (ii) the Contract is the valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, (iii) Seller will comply with all applicable federal, state and local laws, ordinances, rules and orders with respect to this Contract, (iv) there exists no actual or potential conflict of interest between Seller and Buyer and, in the event of any change in Seller’s interests, Seller will promptly inform Buyer regarding possible conflict of interest which may arise as a result of the change, and (v) Seller has not offered or given, and shall not offer or give, any gratuity or thing of value to any employee of Buyer or of any affiliate of Buyer. These warranties may not be limited in scope or duration or be disclaimed.
10.Representations and Warranties About the Products and Services. Seller represents and warrants to Buyer that: (i) any Products or Services provided pursuant to this Contract, including any replacements, corrections, or repairs furnished by Seller (a) will be manufactured, sold, distributed, delivered and/or performed, as applicable, incompliance with all applicable federal, state and local laws, ordinances, rules, and orders, and Seller will obtain and maintain all necessary permits, registrations, and licenses to accomplish same, (b) will strictly conform to specifications published, furnished, or specified by Buyer and (c) will be performed and delivered in accordance with the highest prevailing industry standards for the type of Product and/or Service provided; (ii) any Product provided under this Contract, including any replacements, corrections, or repairs furnished by Seller (a) will be of new and unused materials, (b) will not be restricted in any way by security interests, liens, or any other encumbrances or rights of third parties, (c) will be adequately contained, packaged, marked and labeled, (d) will include all applicable service and maintenance manuals, (e) will be safe and free from defects in material and workmanship, and (f) if the Seller knows, or reasonably should know, the purpose for which the Products are purchased, Seller also warrants that the Products are fit for the particular purpose; and (iii) the Services will be provided only by those individual personnel identified in the applicable Order. BDO reserves the right to direct removal and replacement of the Seller’s personnel for any lawful reason. If a replacement is requested, the Seller shall promptly replace the identified personnel at no cost for transition time to Buyer. Upon Buyer’s request, the Seller’s personnel will have passed a drug, alcohol, and all foreign substances test, meaning that there is no presence of these items in the results of such tests.
11.Insurance. Seller shall obtain and/or maintain in full force and effect during the term of this Contract and three (3) years thereafter, statutory worker's compensation insurance and general comprehensive and contractual liability insurance in sufficient amounts that are commercially reasonable and that cover liability of Buyer that may arise hereunder.
12.Termination of Contract. Buyer may terminate this Contract in whole or in part, at any time, by giving thirty(30)days' prior written notice to Seller. In addition, Buyer may immediately terminate this Contract, in whole or in part, if: (i) Seller does not make timely shipments pursuant to the terms of this Contract; (ii) any warranty or representation of Seller in this Contract is or becomes false or untrue, (iii) Seller does anything to harm the business reputation of Buyer; (iv) Buyer reasonably determines Seller has violated a law in providing Products and/or Services; or (v) any governmental funding and/or grants provided to Buyer to which the Products and/or Services relate is cancelled or not renewed. Upon termination of this Contract, Seller will immediately cease work on this Contract or the terminated portion thereof and notify any subcontractors to do likewise. Buyer’s liability upon termination will be limited to amounts accrued under the Contract for any conforming Products and/or Services accepted by Buyer prior to the effective date of such termination notice. If Buyer has paid in advance for any Products and/or Services, upon termination, Seller will promptly provide Buyer a pro-rata refund for all undelivered Products and/or Services. In the event Seller breaches or Buyer terminates this Contract, in whole or in part, Buyer reserves all available rights and remedies, whether arising in law or equity, including, but not limited to, the right to specific performance and the right to recover consequential, incidental and/or punitive damages. Buyer’s rights and remedies shall be cumulative. Upon the Buyer’s request or upon termination or expiration of this Contract (whichever comes first), Seller will return to Buyer all original materials provided to Seller by Buyer and in any event will destroy any remaining original materials including electronic data, with a secure wipe that conforms with NIST SP 800-88 media erasure guidelines, and shall provide to the Buyer written notice of completion of destruction.
13.Confidentiality. As a result of this Contract, Seller may become aware of or gain certain non-public information relative to Buyer’s business, operations, or activities (“Confidential Information”). Seller hereby agrees (i) that all Confidential Information is proprietary and confidential in nature; and (ii) that Seller will not disclose, publish or make use of any Confidential Information for any purpose without the express written consent of Buyer unless required by law or legal process or the information has become available to the general public through no fault of Seller. Only Seller personnel with a need to know may have access to or use the Confidential Information. Any drawings, specifications, documents and other information or property that Buyer furnishes to or acquires from Seller in connection with this Contract (the “Furnished Items and Information”) will remain Buyer’s property. Seller will not commingle the Furnished Items and Information with property or information of Seller or third parties. If there is an actual or threatened breach of this Section 13 by Seller, Seller acknowledges that Buyer’s remedies at law will be inadequate. Therefore, Buyer will have the right of specific performance or injunctive relief, or both, in addition to any and all other remedies and rights at law or in equity, and Buyer’s rights and remedies will be cumulative.
14.Indemnification. Seller will at its own expense indemnify, release and hold Buyer and its members, partners, employees, contractors, agents and affiliates (collectively, the “Buyer Group”) harmless (and defend the Buyer Group if the Buyer requests) as to any claims, liabilities, losses, damages and expenses (including attorney fees) brought against any member of the Buyer Group or incurred by any member of the Buyer Group because of (i) any breach by Seller of this Contract, (ii) any claim of infringement of any patent or copyright, misappropriation of trade secrets anywhere in the world or violations of contractual obligations to third parties, in each case with respect to any software, program, tools, systems, hardware, data, information, service, documentation and/or other materials developed, provided or used by the Seller in connection with the Services, (iii) any death, injury, or damage to any person or property caused or alleged to have been caused by the Products and/or Services or by Seller's manufacture of the Products and/or performance of the Services, (iv) any act or omission on the part of Seller or any of its subcontractors, or (v) the installation, delivery, operation, or use of the Products. Buyer may offset any indemnification obligations due from Seller against any amounts Buyer owes Seller. Should any Products and/or Services become, or in the Seller’s opinion be likely to become, the subject of any such claim, Seller shall at its option use its best efforts to either procure for Buyer the right to continue using such Products and/or Services, or shall replace or modify the software, program, tools, systems, hardware, data, information, service, documentation and/or other materials developed, provided or used by Seller in connection with the Service to make it non-infringing. In the event that neither of the aforementioned alternatives is commercially reasonably available, Buyer may terminate this Contract or any applicable Order, and Seller shall provide a prorated refund to Buyer of any fees paid for the Services for the portion of the term remaining at the time of such termination.
15. Audit Rights. Seller agrees to provide documentation sufficient to support verification of amounts invoiced to Buyer and documentation that validates the quality of the Supplies. Seller will keep all documents and data relevant thereto for at least 2 years following the later of the last delivery of the Supplies or the date of the final payment to Seller under the Purchase Order. Buyer may make copies of these materials.
16.Affirmative Action/Equal Employment Opportunity Obligations. Buyer is an equal opportunity employer and federal contractor and/or subcontractor. Consequently, Seller agrees that, if applicable, Seller 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 agrees 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, sexual orientation, gender identity, 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, sexual orientation, gender identity, national origin, protected veteran status or disability. Seller also agrees that, if applicable, it 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.
17.Dispute Resolution. This Contract shall be governed by, and construed in accordance with, the laws of the State of New York, except for its conflict of laws principles. Any controversy or claim arising out of or relating to the Products or Services shall be submitted first to voluntary mediation, and if mediation is not successful, then to binding arbitration, in accordance with the Rules for Non-Administered Arbitration of the CPR Institute for Dispute Resolution as in effect on the date of these Terms. Judgment on any arbitration award may be entered in any court of appropriate jurisdiction.
18. Notices. Any notice, demand, request, statement or other writing required or permitted by this Contract or any Order shall be deemed to have been sufficiently given either when personally delivered, delivered by receipted courier service, or mailed, postage prepaid, by registered or certified mail, return receipt requested (confirmed by personal delivery, receipted courier service, or prepaid registered or certified mail, return receipt requested), to the individual representatives identified below at the addresses specified herein, and in any case shall be effective when received. The individuals designated below shall, unless and until otherwise provided in writing by the appropriate party, be the only individuals eligible to receive any and all written notices under this Contract.
If to BDO:
BDO USA, P.C.
5300 Patterson Ave. S.E. Suite 110
Grand Rapids, MI 49512
Attention: Corporate Controller
Tel: 616-575-4236
With a copy to:
BDO USA, P.C.
330 North Wabash, Suite 3200
Chicago, IL 60611
Attention: Office of the General Counsel
Tel: 312-856-9100
If to Seller: to the address specified on any Order
19. Relationship of Parties. Each party acknowledges that the Contract will in no way be construed or interpreted to be an exclusive arrangement between Buyer and Seller. In addition, Seller will at all times be acting and performing as an independent contractor. Nothing in this Contract is intended to create an employer/employee relationship or a joint venture relationship between the parties. Seller will not have any authority to enter into any contract or agreement to bind Buyer and will not represent to any individual or entity that it has such authority.
20.Survivability. Provisions surviving termination or expiration of this Contract are those concerning indemnification, confidentiality, representations and warranties, choice of law and venue, and any other provisions which on their face affect rights and obligations after termination or expiration.
21.Severability. The terms of this Contract are severable. If any term or provision is declared by a court of competent jurisdiction to be illegal, void, or unenforceable, the remainder of the provisions will continue to be valid and enforceable.
22.Assignment/Subcontracting. Seller will not assign this Contract, any Order, or any interest therein without the prior written consent of Buyer. Any attempted assignment by Seller shall be null and void. Seller may not subcontract any of its rights or obligations under the Contract without Buyer’s prior written consent. If Buyer consents to Seller’s use of a subcontractor, then Seller shall (i) guarantee and will remain primarily liable for the performance of all subcontracted obligations; (ii) indemnify Buyer for all damages and costs of any kind incurred by Buyer by the acts and/or omissions of Seller’s subcontractors, and (iii) make all payments to such subcontractors.
23. Publicity. Seller agrees not to publish or use any advertising, sales promotion or publicity matter relating to services, materials, information, products and reports, concerning or furnished by Buyer, wherein the name “BDOUSA” or “BDO” and/or any of BDO’s clients’ names, trademarks, service marks, tradenames or logos are mentioned or their identity implied.