Purchase Order General Terms and Conditions
Revised August 2019
Acceptance of order/statement of work
By accepting or providing goods or services pursuant to any order, statement of work, invoice, purchase order, or other contract (an “Order”) referencing these General Terms and Conditions, you agree to the terms of these General Terms and Conditions (together with the applicable Order, this “Agreement”), unless another agreement, specific to the transaction, has been executed by authorized representatives of both you and The Institute of Electrical and Electronics Engineers, Incorporated (“IEEE”).
You represent and warrant that (i) you have the necessary power and authority to enter into this Agreement, (ii) your name, as listed in the Order is your true and correct full legal name as specified in your articles of incorporation, bylaws, charter, or any other applicable legal document (iii) you shall perform all of the services outlined in the Order using sound practices and in a competent and professional manner and will only use knowledgeable, trained and qualified professionals; (iv) you shall provide services and/or products that materially conform to the specifications set forth in the applicable Order; and (v) you shall comply with IEEE’s Conflicts of Interest Policy. You shall ensure that all of your subcontractors comply with these obligations in all respects.
Intellectual Property Rights
To the extent that any of the services you render under this Agreement result in your creation of any works, including, but not limited to, textual, audio or visual works and source code (“Works”), each such Work shall be deemed specially commissioned by IEEE and shall be considered a “work made for hire” as that term is defined in the United States Copyright Act. You acknowledge that IEEE is and shall be considered the author of each such Work and shall at all times be the sole owner of all rights in and to each such Work. IEEE shall also have the exclusive right (but not the obligation) to obtain copyright registration of, or relating to, any and all such Works in the name of IEEE, or in such other name or names as IEEE may elect, and to obtain renewals thereof. If, for any reason, it is determined that any such Works are not works made for hire, then this Agreement shall be deemed an assignment to IEEE of all rights in and to such Works, without any further compensation to you. You agree to execute and deliver to IEEE, promptly upon request, any documents that IEEE may reasonably request to evidence IEEE’s exclusive rights as provided above and to enable or assist IEEE to obtain and protect its rights therein.
Compliance with Laws
You represent and warrant that you shall comply with all laws and regulations that apply to your obligations and duties under this Agreement.
You agree to indemnify, defend and hold harmless IEEE, its parents, subsidiaries, affiliates, and its and their officers, agents, and employees from and against any and all claims, damages, liabilities, losses and/or expenses (including attorneys’ fees and costs and any claim or threatened claim of third parties) incurred by IEEE (collectively, “Losses”) that arise from your performance or breach of this Agreement. This provision shall also apply to any and all subcontractors you may hire in relation to this Agreement.
Limitation on Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST BUSINESS, LOSS OF DATA, OR COST OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH ANY AGREEMENT BETWEEN THE PARTIES, OR THE SERVICES PERFORMED THEREUNDER UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, THIS SECTION SHALL NOT APPLY TO ANY INDEMNIFICATION OBLIGATIONS INCLUDED HEREIN.
Neither party shall disclose to a third party Confidential Information of the other party. The receiving party shall use the same degree of care as it uses to protect the confidentiality of its own confidential information of like nature, but no less than a reasonable degree of care, to maintain in confidence the Confidential Information of the disclosing party. “Confidential Information” as used herein means information identified by either party as “Confidential” and/or “Proprietary,” or information that, under the circumstances, ought reasonably be treated as confidential and/or proprietary. All Confidential Information and any and all copies and reproductions thereof shall, upon the expiration or termination of this Agreement for any reason or within fifteen (15) days of written request by IEEE, be promptly returned to it, or in the alternative, destroyed upon IEEE’s written request. You shall ensure that all of its subcontractors comply with this obligation. In the event of such requested destruction, you shall provide to IEEE written certification of compliance therewith within fifteen (15) days of such written request.
IEEE Visual Identity
All IEEE-branded, end-user facing, materials (the “Materials”), including, but not limited to, Web sites, print collateral, and promotional items such as pens and shirts, for IEEE publications, products, services, conferences, and the like must adhere to the guidelines established by IEEE.
Notwithstanding anything to the contrary in the Order, for the term of the Agreement, each party shall secure and maintain, at its own expense, all insurance necessary to fulfill its obligations under this Agreement. Such insurance shall be written by an insurance carrier rated “A” or better by A.M. Best Company. Each party has the right, but not the obligation, to request evidence of such insurance.
Either party may terminate this Agreement immediately upon written notice if the other party has failed to cure a breach of this Agreement within thirty (30) days following written notice of such breach given by the non-breaching party. Notwithstanding the above, if either party engages in fraud, intentional misrepresentation or willful misconduct in connection with its performance of this Agreement, the other party shall have the right to terminate this Agreement immediately without notice.
In rendering the services, you shall be acting as an independent contractor and not as an employee or agent of IEEE. You and your employees shall have no claims or rights to receive or participate in any employee benefit plans or arrangements of IEEE. As an independent contractor, you shall have no authority, express or implied, to commit or obligate IEEE in any manner whatsoever, except as specifically authorized from time to time in writing by an authorized representative of IEEE, which authorization may be general or specific. Nothing contained in this Agreement shall be construed or applied to create a partnership, joint venture, or employer/employee relationship.
Equal Opportunity Employer/Non-Discrimination
IEEE is an Equal Opportunity Employer and complies with Executive Order 11246 and hereby provides notice of its compliance with FAR 52-222-26, 41 C.F.R. 60-1.4 41 C.F.R. 60-250.5 and 41 C.F.R. 60 741.5, which are hereby incorporated by reference. IEEE expects that the you shall maintain an environment free of discrimination, harassment, bullying, or retaliation.
If you hire any subcontractors in relation to this Agreement, you shall: (i) ensure all subcontractors are qualified to perform the work and will comply with all IEEE contracting requirements contained herein and (ii) remain fully responsible and liable for the subcontracted obligations to the same extent as if you had fulfilled the obligations itself.
Choice of Law
This Agreement shall be governed by and construed in accordance with the laws of the United States of America and the State of New York, without regard to conflict of laws principles.
Any prevention of or delay in either Party’s performance hereunder due to labor disputes, acts of God, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond such Party’s control shall excuse such party’s performance of its obligations hereunder for a period equal to the duration of any such prevention or delay.
This Agreement may not be assigned or transferred without the written consent of both parties. Any changes or additions to this Agreement must be agreed to in writing by both parties. The failure of either party to require strict performance by the other party of any provision hereof or waiver by either party of a breach of any provision hereof shall not be taken as a waiver of the provision itself. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of this Agreement shall continue in full force and effect. Section headings contained in this Agreement are inserted for convenience of reference only, shall not be deemed to be part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof.