Tektronix Terms and Conditions for Purchases
If Supplier and Tektronix have an executed Master Agreement, the Master Agreement will apply to this Order. If there is no Master Agreement, the terms and conditions set forth below, together with those appearing on this order or on any exhibits attached hereto ("Order") constitute the complete an exclusive agreement between Tektronix and the supplier identified on this Order ("Supplier') with respect to the services or goods to be provided hereunder. The terms and conditions of this Order take precedence over any additional or different terms and conditions of Supplier which may be contained in Supplier's quotation or acknowledgment to which objection is hereby made by Tektronix. Acceptance of this Order by Supplier shall be expressly limited to the terms of this Order. No modification of this Order shall be binding on either party unless in writing and signed by an authorized representative of each party.
Supplier shall provide the services (“Services) or goods (“Goods”) specified on the Order at the price or fee specified. Prices are firm for the period shown and are exclusive of taxes. Charges shall not exceed the maximum costs and expenses, if any, specified on the Order.
Total charges against this Purchase Order are Not-To-Exceed the amount shown without further written management authorization. This Not-To-Exceed amount is for internal control purposes only and does not constitute an order or obligation to purchase goods or services for the total amount shown.
3. INVOICES AND PAYMENT
Unless previously agreed upon by the Parties, Supplier will issue invoices upon completion of the services or upon such other progress billing interval specified on the Order. Unless previously agreed by the Parties, payment terms are net 90 days or payment by Tektronix’s credit card process, after receipt of correct invoice by Tektronix for satisfactorily completed Services. Such payment constitutes full and complete compensation for Supplier’s services and advice and for all obligations assumed by Supplier under this Order. All invoices should be sent to [email protected].
4. SCHEDULING FOR SERVICES
Supplier will perform the Services pursuant to the time schedule specified on the Order. If no schedule is set forth, Tektronix and Supplier will develop a mutually agreeable schedule.
5. SHIPPING, DELIVERY & PACKAGING FOR GOODS
Unless specified on the face of this Order, no charge shall be made by Supplier for packaging, marking or storage. All Goods shall be packaged, marked, and otherwise prepared in accordance with good commercial practices, Buyer’s specifications, or applicable government regulations. Supplier shall be responsible for any loss or damage due to its failure to properly preserve, package, handle, or pack the Goods; Buyer shall not be required to assert any claims for such loss or damage against the common carrier involved.
Suppliers shall ship the Goods in accordance with the shipping instructions provided on the face of the Order (or as otherwise designated by Buyer). If no instructions are provided, Supplier shall ship the Goods freight collect. If Supplier ships Goods by a method other than as specified, Supplier shall pay any resulting increase in the cost of freight incurred over that which would have been incurred had Supplier complied with Buyer’s shipping specifications.
Each shipment of Goods to Buyer shall include a packing list which contains at least (i) the number of this Order, (ii) the Buyer part number if applicable, (iii) the quantity, and (iv) the date of shipment. If Supplier ships more Goods than ordered Buyer may return the amount of the over shipment to the Supplier.
Supplier shall notify Buyer immediately when Supplier has knowledge of any potential delay in delivery. If only a portion of the Goods is available for shipment to meet the Delivery Date, Supplier shall ship the available Goods unless directed by Buyer to reschedule shipment.
Goods comprising or containing chemicals shall be shipped in conformance with Government or freight regulations applicable to such chemicals. Buyer shall not be liable for any loss or damage caused by a release of chemicals or other hazardous materials to the environment prior to Buyer’s actual receipt of the corresponding Goods.
Unless otherwise specified on the face of this order, shipping terms shall be FOB point of shipment. Title and risk of loss will pass to Buyer upon delivery of the Goods by Supplier to the Carrier. If the face of this Order specifies the FOB point as Buyer’s location, Supplier shall bear the risk of loss or damage to the Goods and title shall not pass to Buyer until delivery of the Goods to the Buyer location.
Upon Buyer’s request, Supplier shall provide Buyer with an appropriate certification stating the country of origin for Goods, sufficient to satisfy the requirements of (i) the U.S. customs authorities, and (ii) any applicable export licensing regulations, including those of the United States. Supplier shall mark every Good (or the Good’s container if there is no room on the Good itself) with the country of origin, Supplier shall, in marking the Goods, comply with the requirements of the U.S. Customs authorities. If any Goods are imported, Supplier shall, when
possible, allow Buyer to be the importer of record. If Buyer is not the importer of record and Supplier obtains duty drawback rights to the Goods, Supplier shall, upon Buyer’s request, provide Buyer with documents required by the customs authorities of the country of receipt to provide importation and to transfer duty drawback rights to Buyer.
Supplier warrants that (i) all Services will be performed in a competent and professional manner; (ii) that Supplier possesses the requisite expertise, experience, facilities and equipment necessary and appropriate to perform the Services; (iii) the Services will be entirely of Supplier's own work or Supplier will have secured the necessary permissions from authors or creators whose work it has used as part of the Services; (iv) the Services will not violate or infringe upon rights of third parties, including any trademark, patent, copyright or other intellectual property right; (v) the Services will be completed in accordance with any applicable specification and shall be free of errors or defects and shall be appropriate for the purposes contemplated by this Order, These warranties, and all other warranties, express or implied, shall survive acceptance, non-inspection, and payment.
Supplier warrants that all Goods will conform to and perform in accordance with the drawings, specifications, samples or other
descriptions applicable thereto, including any specifications supplied by Buyer. Supplier further warrants that all Goods furnished pursuant to this Order will be (i) free from all defects in material and workmanship, (ii) free from defects in design except to the extent that such Goods comply with the detailed designs provided by Buyer, (iii) suitable for the purposes, if any, which are stated on the face of this Order, and (iv) in conformity with all other requirements of this Order. Supplier warrants good title to the Goods furnished pursuant to this Order. In addition to any other rights which Buyer may have, if Goods are found not to be as warranted within one (1) year period after receipt at the specified Buyer location (or such longer period as is provided in Supplier’s standard warranty). Buyer may return such Goods to supplier, at Supplier’s expense, for correction, replacement, credit or refund, as Buyer may direct. These warranties, and all other warranties, expressed or implied, shall survive inspection, acceptance, non−inspection and payment. SUPPLIER DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE.
7. MATERIAL AND TOOLS
If Buyer furnishes Supplier material and equipment (such as special dies, molds, jigs, tools, test equipment or masks) or pays for such material or equipment, title thereto shall remain or vest in Buyer, and Supplier shall identify, maintain and preserve such material and equipment as Buyer property and shall only dispose of such material and equipment (including scrap) in accordance with Buyer’s direction. Unless otherwise authorized in writing by Buyer, supplier shall use such material or equipment only in the performance of orders for Buyer. Supplier shall bear all risk of loss or damage to such material or equipment until it is returned to Buyer. Upon request of Buyer, Supplier shall deliver all such material or equipment to Buyer in good condition, normal wear and tear excepted, without cost to Buyer. Supplier waives any legal or equitable right to withhold or retain such material or equipment. Supplier shall execute a Uniform Commercial Code Financing Statement covering the material or equipment upon Buyer’s request.
8. OWNERSHIP OF WORK PRODUCT, COPYRIGHT
Any original work of authorship, including any written, pictorial, graphic, or audiovisual work or sound recording, by or for Supplier in connection with this Order shall be the property of Tektronix, and Supplier hereby assigns and agrees to assign to Tektronix all of Supplier's rights, including the rights of copyright, in the work. Supplier will execute ALL documents and perform all acts that Tektronix may reasonably request in order to assist Tektronix in perfecting its rights in and to the works developed under this Order anywhere in the world, and Tektronix will reimburse Supplier for any expenses reasonably incurred by Supplier in so doing. Supplier will also secure a written assignment to Tektronix of any rights to the work held by any third-party performing services for Supplier in connection with this Order.
Tektronix will have the right to use designs worldwide and change/modify text for suitability in other languages.
With written permission by Tektronix, Supplier may display material produced or created by Supplier and represent itself as the creator of such material.
9. SUPPLIER'S EMPLOYEES, AGENTS, AND SUBCONTRACTORS
Supplier personnel upon entering Tektronix property shall be subject at all times to Tektronix' rules and regulations regarding safety, security, and protection of confidential information. Supplier personnel shall be issued a visitor identification badge by Tektronix and shall wear such identification badge and be properly escorted (to the extent required by Tektronix) at all times when on Tektronix property.
Supplier shall be solely responsible for the conduct of its personnel while on Tektronix property. Supplier is responsible for ensuring that its employees conduct Services provided in an ethical and professional manner. Supplier agrees not to offer, provide, or arrange for any gratuity or free Service to or for any Tektronix employee.
Supplier is responsible for advising its employees of all applicable federal, state, and local laws, rules, and regulations regarding work safety and handling of hazardous materials that may be encountered during the performance of this Order and will cause Supplier employees to comply with such laws, rules, or regulations.
10. NO EMPLOYMENT RELATIONSHIP
Supplier agrees that Supplier is an independent contractor and not an employee of Tektronix nor subject to the direct supervision of Tektronix. Supplier’s personnel shall be employees, agents, or subcontractors of Supplier, not of Tektronix. Supplier shall be solely responsible for payment of wages, salaries and other amounts due to its personnel in connection with this Order and shall be responsible for all reports and obligations respecting them relating to social security, income tax withholding, unemployment insurance, workers’ compensation, and similar matters.
11. CONFLICT OF INTEREST
Supplier warrants that it is not obligated under any agreement with a third party that conflicts with the provisions of this Order. During the course of this Order, Supplier will avoid any employment or other activity that would give rise to a conflict of interest or an appearance of conflict of interest or that would otherwise be inconsistent with this Order.
12. DRUG AND ALCOHOL POLICY
Supplier hereby warrants to Tektronix that all personnel provided by Supplier shall not possess or use or be under the influence of alcohol or any controlled substance (other than prescription medicine as directed by a physician which does not adversely affect the ability to provide the services) at any time while such personnel are providing services to Tektronix. If Supplier has an alcohol or drug testing program, Supplier warrants that all Supplier personnel providing services to Tektronix shall be subject to such program so long as providing such services. In the event that any Tektronix manager has reason to believe that any Supplier-provided person is under the influence of alcohol or drugs (including prescription medicines to the extent of interfering with the provision of services), Tektronix may terminate any or all outstanding Purchase Orders hereunder, unless Supplier can establish to Tektronix' satisfaction that the warranties have not been violated. Notwithstanding any such termination, Supplier shall indemnify and hold Tektronix harmless from Supplier's breach of any of the warranties provided.
Supplier shall maintain insurance coverage including workers' compensation, employers' liability and comprehensive liability in force for all individuals performing services on behalf of Supplier under this Order, at Supplier’s sole cost and expense, and in amounts reasonably sufficient to cover any liabilities assumed by Supplier or imposed on Supplier under this Order.
14. TERM AND TERMINATION
This Order shall commence and end on the dates indicated on the Order, unless terminated earlier under this Section 14.
Without Cause. Tektronix may terminate this Order without cause at any time by providing Supplier with written notice. If Tektronix terminates any portion or all of an outstanding purchase order (other than as a result of a default by Supplier), Tektronix shall pay for any satisfactorily completed Services received from Supplier before the effective date of termination on a time and materials basis. Tektronix shall not be responsible for Supplier's lost profits. Any claim by Supplier for such actual costs shall be deemed waived by Supplier unless submitted in writing to Tektronix within thirty (30) days after Tektronix notifies Supplier of the termination. This constitutes Tektronix sole liability for termination without cause.
With Cause by Tektronix. Tektronix may terminate this Order and/or any outstanding purchase orders without liability in the event (i) Supplier fails to properly perform any of the Services within the time specified in any purchase order; (ii) Supplier fails to perform any other obligation provided for in a purchase order or this Order, or Supplier so fails to make progress so as to endanger performance of an outstanding order in accordance with its terms, and in either of these two circumstances, Supplier does not cure such failure within a period of ten (10) days after receipt of notice of such failure from Tektronix; (iii) a petition in bankruptcy is filed by or against Supplier; or (iv) a receiver is appointed for Supplier or Supplier makes an assignment for the benefit of creditors. The rights and remedies of Tektronix contained herein are in addition to any other rights or remedies provided by the law.
In the course of providing Services to Tektronix, it is anticipated that Supplier will acquire knowledge (orally, by visual observation, or in writing) of information considered by Tektronix to be confidential and proprietary, including without limitation, that regarding: (i) matters of a technical nature such as know-how, formulas, trade secrets, secret processes or machines, inventions, or research projects; (ii) matters of a business nature such as information about costs, profits, pricing policies, markets, sales, suppliers, customers, employees, plans for future development, plans for future products, marketing plans, or strategies; and (iii) other information of a similar nature not generally disclosed by Tektronix to the public, all of which information is referred to collectively hereafter as "Confidential Information."
Supplier agrees that during the term of this Order and for a period of five (5) years after termination of this Order Supplier will (i) keep secret and retain in the strictest confidence all Confidential Information, (ii) not disclose Confidential Information, in whole or in part, to any third party unless such disclosure is specifically authorized in writing by Tektronix, and (iii) not use any Confidential Information for any purpose other than performance of services for Tektronix. Supplier further agrees to deliver promptly to Tektronix upon termination of this Order, or at any time that Tektronix may request, all memoranda, notes, records, reports, manuals, drawings, or other documents (and all copies thereof) relating to Tektronix business, and all property associated therewith, that are in the possession or under the control of Supplier.
Supplier will secure written agreements from any and all of its employees and subcontractors to whom Tektronix' information is disclosed, binding them to obligations comparable to those herein set forth. Nothing herein shall be construed to prevent disclosure of confidential information as may be required by applicable law or regulation, or pursuant to the valid order of a court of competent jurisdiction or an authorized government agency, provided that the disclosure does not exceed the extent of disclosure required by such law, regulation, or order. Supplier shall notify Tektronix immediately in the event Supplier becomes aware of any loss or disclosure of any confidential information.
16. AUDIT RIGHTS
During the term of this Order, on reasonable request and during regular business hours, Tektronix may at its own expense inspect, or have its Representatives, or a mutually-agreed independent third party inspect and audit Supplier's books, records, and other documents as necessary to verify compliance with the terms and conditions of this Order. For a period of at least two (2) years following the date particular Services or Goods are delivered to Tektronix under this Order, or for such longer periods as may be required under applicable law, Supplier agrees to maintain (i) accounting records necessary to verify the basis for all amounts charged to Tektronix for Services; and (ii) all personnel records for each employee that participates in the performance of Services under this Order. Tektronix shall have the right to audit the prior calendar year’s records as necessary to verify compliance with the terms and conditions of this Order once annually during normal business hours, upon at least fifteen (15) days prior written notice to Supplier. Supplier shall reasonably cooperate and assist with such audit and provide all applicable documentation as requested by Tektronix. Notwithstanding the foregoing, the parties agree that Tektronix may conduct an audit at any time, without notice, in the event (i) of an audit by Tektronix’s governmental or regulatory authorities, (ii) of an investigation of claims of misappropriation, fraud, or business irregularities of a potentially criminal nature, or (iii) Tektronix reasonably believes that an audit is necessary to address a material operational problem or issue that poses a threat to Tektronix’s business. Each party will bear its own costs and expenses in connection with such audit. If, however the audit reveals an overcharge to Tektronix, or a material breach of this Order by Supplier, Supplier will pay Tektronix’s costs associated with the audit.
17. COMPLIANCE WITH LAWS
Supplier will comply with all applicable federal, state, and local laws and regulations in the performance of this Order. If at any time Supplier becomes aware of information or circumstance that suggest any of the representations, warranties, and covenants referenced in this Section 17 may not be accurate, it shall notify Tektronix immediately in writing, but not more than seven (7) days after becoming aware of such circumstances.
Supplier will comply with all applicable environmental, health and safety rules and regulations including, without limitation, the RoHS 2 Directive and its implementing national legislation.
18. DATA PRIVACY
Supplier will immediately inform Tektronix or any of its Affiliates if Supplier or Supplier’s Agents or sub-contractors anticipate processing personal data on behalf of Tektronix or its Affiliates for the purposes of this order. Supplier agrees that it will not process personal data on behalf of Tektronix unless it enters into a separate written agreement with Tektronix governing personal data which terms shall be determined solely by Tektronix and Supplier here by agrees to execute.
Supplier may not assign or delegate its rights or obligations under this Order, either in whole or in part, without the prior written consent of Tektronix.
20. LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Supplier agrees to indemnify, defend and hold harmless Tektronix, its officers, directors, employees, and agents from and against, without limitation, any and all liabilities, penalties, fines, forfeitures, demands, claims, costs, and expenses incidental thereto, including cost of defense, settlement, and reasonable attorneys' fees, which any or all of them may suffer, incur, be responsible for, or pay out as a result of bodily injuries (including death) to any person, damage (including loss of use) to any property (public or private), or any violation or alleged violation of any statute, ordinance, order, rule, or regulation of any governmental entity or agency, to the extent caused by, arising out of, or connected with Supplier's performance of Services, including, but not limited to Supplier's acts, errors, omissions, negligence, intellectual property infringement and failure to otherwise comply with any portion of the Order.
The failure of either party to enforce at any time any provision of these terms and conditions shall not be construed to be a waiver of such provision or the right thereafter to enforce each and every provision hereof. No waiver by either party, either express or implied, of any breach of these terms or conditions shall be construed as a waiver of any other term or condition.
23. GOVERNING LAW
This Order shall be governed in accordance with the laws of the State of Oregon.
24. US GOVT FAR FLOWDOWN REG'S
The following provision of the Federal Acquisitions Regulations (FAR) in effect on the date of this Order are incorporated herein by reference:
(i) 52.203-13, Contractor Code of Business Ethics and Conduct (APR 2010)
(Pub. L. 110-252, Title VI, Chapter 1 (41 U.S.C. 251 note)). Applies if subcontract exceeds
$5M and performance is 120 days or longer.
(ii) 52.219-8, Utilization of Small Business Concerns (MAY 2004) (15 U.S.C. 637 (d) (2)
and (3)), in all subcontracts that offer further subcontracting opportunities. If the subcontract
(except subcontracts to small business concerns) exceeds $550,000, the subcontractor must
include 52.219-8 in lower tier subcontracts that offer subcontracting opportunities.
(iii) 52.222-26, Equal Opportunity (MAR 2007) (E.O. 11246).
(iv) 52.222-35, Equal Opportunity for Veterans (SEP 2010) (38 U.S.C. 4212).
(v) 52.222-36, Affirmative Action for Workers with Disabilities (OCT 2010) (29 U.S.C. 793).
(vi) 52.222-41, Service Contract Act of 1965, (NOV 2007), (41 U.S.C. 351, et seq.).
(vii) 52.222-51, Exemption from Application of the Service Contract Act to Contracts for Maintenance, Calibration, or Repair of Certain Equipment—Requirements (NOV 2007) (41 U.S.C. 351, et seq.).
(viii) 52.222-53, Exemption from Application of the Service Contract Act to Contracts for Certain Services—Requirements (FEB 2009) (41 U.S.C. 351, et seq.).
(ix) 52.222-50, Combating Trafficking in Persons (FEB 2009) (22 U.S.C. 7104 (g)), and Alternate I.
(x) 52.222-40, Notification of Employee Rights Under the National labor Relations Act (DEC 2010)
(xi) 252.204-7008, Export-Controlled Items (APR 2010).
(xii) 52-245-1, Government Property
25. EEO REQUIREMENTS
Unless exempt, this contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). 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. Moreover, 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. If applicable, the contractor and subcontractor shall also abide by the requirements 41 CFR § 61-300.10 regarding veterans’ employment reports and 29 CFR Part 471, Appendix A to Subpart A regarding posting a notice of employee rights.
26. USE OF TEKTRONIX TRADEMARKS
Supplier shall not use the name of Tektronix, directly or indirectly, in any of Supplier's advertising or publicity without the prior written consent of Tektronix.
27. TRAVEL AND EXPENSES
Travel shall follow the standards of the Tektronix Travel Policy. Travel expenses must be approved by the Program Manager. If travel expenses do not adhere to the Tektronix Travel Policy, Tektronix will not be obligated to reimburse Supplier for such expenses.
28. CODE OF CONDUCT
Supplier will comply with the attached terms of the Fortive Code of Conduct when providing services and/or goods described in this Purchase Order.