First American Products And Services Agreement
Standard Terms and Conditions for Purchase Orders (“Standard Terms”)
- Scope of Services. Upon submission of a purchase order from First American (“Purchase Order”), Vendor shall provide the Products/Services requested in such Purchase Order. The types of Products/Services to be provided and/or performed by Vendor for First American may be more specifically set forth in a Statement of Work (SOW), and which SOW, if applicable, shall be attached hereto and incorporated herein by reference and the SOW and underlying Master Agreement shall take precedence over the terms herein.
- Purchase Order. Purchase Orders submitted by First American shall include, without limitation, the following: (a) the Products/Services requested; (b) the required delivery date; (c) the location where Products/Services are to be delivered; (d) the cost of the Products/Services (which shall include delivery if required); and (e) any special conditions as may be determined by First American.
- Warranty and Inspection. Vendor warrants that the Products/Services delivered will be free of all defects in design, workmanship and material. First American shall review all Products/Services delivered to it by Vendor. In the event that First American finds that any Product/Service is unacceptable, it shall give prompt notice to Vendor setting forth the reasons why it finds such Product/Service unacceptable and the steps which it believes Vendor should take in order to make such deliverable acceptable. Vendor will then meet with First American to determine a mutually agreeable schedule consistent with First American needs for such additional steps to be taken to bring the Product/Service into conformance and the revised Product/Service to be delivered.
- Trademarks and Licenses. Without the express written permission of First American, Vendor shall not use trademarks, trade names, service marks, insignias or logos owned or used by First American (collectively, First American “Marks”). Vendor, its affiliates and agents, if any, shall have no interest in or right to the use of First American Marks for any sales, marketing or publicity activities or materials, except for any limited non-exclusive right of usage which First American may grant in writing pursuant to these Standard Terms.
- Schedule for Performance. The schedule for performance of all of Vendor’s Products under a Purchase Order shall be set forth in such Purchase Order. Both parties acknowledge and agree that time is of the essence under said Purchase Order and failure of Vendor to meet the deadlines set forth in such Purchase Order shall constitute a material breach of these Standard Terms. If Vendor is unable to meet any required deadline, Vendor shall notify First American via e-mail within twenty-four (24) hours of receipt of Purchase Order. First American shall have the right, in its sole and absolute discretion, to determine a revised schedule or cancel said Purchase Order.
- Fees and Costs. The fees and cost for Products/Services shall be as set forth in individual Purchase Orders. First American shall pay no additional cost or fees unless specifically authorized in writing in advance from an authorized officer of First American.
- Changes/Amendments. No changes in the scope of services, fees or schedule of performance shall be effective unless approved in writing by First American and Vendor in advance. Such changes shall be incorporated herein by reference. Vendor will immediately inform First American Strategic Sourcing & Procurement Department of any additions or deletions requested by any First American location.
- Billing Rates and Payment. Vendor shall submit invoices to First American, accompanied by supporting documentation as may be reasonably required. Invoices submitted to First American require a Purchase Order number be referenced. First American shall pay all correct and properly documented invoices within forty five (45) days of invoice receipt (unless otherwise agreed to in a separate agreement or SOW). First American will have no obligation to pay any amounts that Vendor fails to invoice to First American within one (1) year following the end of the monthly billing cycle in which such amounts first became due.
- Personnel. Vendor agrees to provide all necessary personnel, employees, agents, subcontractors and any other person or entity working on behalf of Vendor (the “Personnel”) to provide Products/Services acceptable to First American and to permit timely completion of all work required hereunder. First American and Vendor both affirmatively state that they are equal opportunity employers and recognize the commitment of the other in this area. Both parties to these Standard Terms shall take reasonable and necessary steps to comply in all material respects with all applicable laws, orders, regulations and executive orders as administered by federal, state and local governments. The parties hereby incorporate the requirement of 41 C.F.R. §§ 60-1.4(a)(7), 60-250.4 and 60-741.4, if applicable. Intentional failure to abide by this paragraph will be treated as a breach of the terms of the purchase order. For any Personnel, agents or contractors that shall have access to First American premises, Confidential Information, or systems, Vendor shall conduct or have conducted background checks on such Personnel, contractors or agents, including but not limited to: (a) verification of identity, citizenship and work certification; (b) searches for any criminal convictions, which convictions will result in that Personnel not being provided access to First American premises, Confidential Information, or systems; and (c) verification of prior two (2) employers and secondary educational history all to the extent not otherwise restricted by law. Vendor agrees to provide certification relating to such background checks to First American or an affiliate, as requested and as permitted by law, that such background checks were completed and the restrictions herein upheld. Vendor shall not permit any Personnel to have access to the premises, Confidential Information, or systems of First American if such Personnel has not been the subject of or has not cleared any aspect of Vendor’s background check.
- No Conflicts/Compliance with Law. Vendor represents and warrants that it is free to enter into these Standard Terms, to render the services, deliver the Products, and to grant the rights herein provided. Vendor is not subject to any obligations or disabilities that will or might prevent or interfere with keeping and performing all of these Standard Terms, covenants, and conditions to be kept or performed hereunder, and Vendor has not made nor will make any agreement, commitment, grant or assignment, or will do, or will omit to do, any act or thing that could or might interfere or impair the complete enjoyment of the rights granted, and the Products\Services to be delivered to First American hereunder. Vendor is not in violation of any laws or on any federal or local municipality debarment list. Vendor will perform the services and deliver the deliverables to be supplied to First American hereunder in a workmanlike manner and in compliance with all applicable laws.
- Originality. Any and all of Vendor’s materials furnished, suggested and/or delivered to First American by Vendor shall be wholly original with Vendor except for materials in the public domain or materials duly licensed to Vendor and which Vendor has the right to sublicense or distribute to First American without further approvals, and shall not be copied in whole or in part from any other work or materials. Neither Vendor’s material nor their use by First American shall infringe upon or violate any right of privacy or publicity of or constitute a libel, slander, or any unfair competition against, or infringe upon or violate any intellectual property rights (including without limitation copyright, patent, trade secret, and/or trademark rights) and/or common law rights or any other rights of any person, firm, corporation or other entity.
- Ownership. All materials, which are created pursuant to these Standard Terms and are subject to protection under the Copyright Act of 1976, as amended, shall be deemed to be “works made for hire” and all rights, title and interest therein shall be owned by First American. To the extent that any original materials may not be “works made for hire” Vendor hereby assigns all rights in the same to First American, and agrees to execute any and all documents necessary to evidence said assignment. In addition to the foregoing, Vendor agrees that First American has and shall retain all right, title and interest in and to all information, data and materials which are provided to Vendor by First American or on behalf of First American pursuant to these Standard Terms (First American “Materials”). Upon termination of this Purchase Order or at First American’s request, Vendor shall immediately cease its use of the First American Materials and shall return all First American Materials, and all copies thereof, to First American, or destroy such materials and certify in writing to First American that such destruction has taken place.
- Confidentiality. All Confidential Information of a party which has been or shall be provided to the other party, and the terms and conditions contained herein, are confidential and may not be disclosed to any third party, except for a party's counsel, financial advisors, or regulatory agencies with oversight of a party, all of whom are bound by confidentiality restrictions. All information provided by a party, or inadvertently disclosed or obtained during discussions or while on a party's premises, is deemed Confidential Information, and subject to the non-disclosure requirements herein. Confidential Information is that which (i) has been marked as confidential or proprietary; (ii) is identified as confidential at the time of disclosure either orally or in writing; or (iii) due to its character and nature, a reasonable person under like circumstances would understand to be confidential.
- Termination. In the event of a material breach of these Standard Terms, either party may immediately terminate this Purchase Order upon written notice to the breaching party; provided, however, that if any material breach is capable of cure, the Purchase Order shall not terminate if the breaching party cures the breach within thirty (30) days after written notice describing the breach. Either party may terminate this Purchase Order immediately by written notice if the other party makes an assignment for the benefit of creditors, becomes subject to a bankruptcy proceeding, is subject to the appointment of a receiver, or admits in writing its inability to pay its debts as they become due. In the event this Purchase Order is terminated for any reason other than a breach by Vendor of these Standard Terms, Vendor shall be entitled to receive payment for all work performed up through the date of termination, provided that any and all results, reports, samples, studies and other materials prepared by Vendor in connection with such work are delivered to First American prior to payment of such work.
- Limitation of Liability. Except with regard to Vendor’s indemnity obligations regarding a claim of third party intellectual property infringement or a breach of confidentiality, a party shall not be liable to the other party whether in contract, tort or otherwise, for any indirect, special, incidental, consequential or punitive damages arising out of or pursuant to these Standard Terms, even if the other party has been advised of the possibility of such damages.
- Indemnification. First American and Vendor shall each defend, indemnify and hold harmless the other party, its current and former officers, directors, agents and employees, from and against any and all loss, whether groundless or otherwise, arising from a claim based upon: a) a breach of the confidentiality terms under these Standard Terms; b) the gross negligence or willful misconduct of a party hereto or its employees; and c) a party's technology used to perform services, or sold to a party, pursuant to these Standard Terms, infringes upon any U.S. issued patent, copyright or trademark.
- Insurance. Vendor, at its sole cost and expense, shall maintain appropriate insurance with Commercial General Liability Broad Form Coverage, including Contractual Liability, Contractor’s Protective Liability and Personal Injury/Property Damage Coverage in a combined single unit limit of not less than $2,000,000,Errors and Omissions coverage in a combined single unit limit of not less than $2,000,000, and Workers’ Compensation insurance as required by law from an insurance company with the Best’s rating of A or better.
- Assignment. These Standard Terms shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assignees. Neither party may assign its rights or obligations under these Standard Terms without the other party’s prior written consent except that First American may assign to a wholly-owned affiliate without consent.
- Independent Contractor. Neither these Standard Terms, the relationship created between the parties hereto pursuant to these Standard Terms, nor any course of dealing between the parties hereto is intended to create, or shall create, an employment relationship, a joint venture, partnership or any similar relationship. Vendor does not have, nor shall Vendor hold itself out as having, any right, power or authority to create any contract or obligation, either express or implied, on behalf of, in the name of, or binding upon First American. Vendor shall be solely responsible for, and shall hold First American harmless from and against, any liabilities, cost or expenses incurred by or on account of its Personnel and their acts and/or omissions. Vendor is an independent contractor, and, as such, First American will not withhold or make payments for social security contributions; make unemployment insurance or disability insurance contributions; or obtain worker’s compensation insurance on Vendor’s behalf for Vendor’s employees and contractors. Vendor hereby agrees to indemnify and defend First American against any and all such taxes or contributions, including penalties and interest.
- Standard Terms Not Exclusive. Except for rights and obligations arising from a specific Purchase Order, nothing contained in these Standard Terms shall be construed as conferring or granting an exclusive right or obligation upon either party to purchase or sell Products or Services under these Standard Terms.
- Governing Law. The validity, interpretation and construction of these Standard Terms shall be interpreted under and governed by the laws of the State of California.
- Complete Terms. These Standard Terms together with any Exhibits hereto and any extensions or renewals hereof, constitute the parties’ understanding and acknowledgement with respect to the subject matter hereof and may be amended only by a writing signed by both parties.
- Severability. If any court of competent jurisdiction finds any provision of these Standard Terms to be unenforceable or invalid, then such provisions shall be ineffective to the extent of the court’s finding without affecting the enforceability or validity of the remaining provisions of these Standard Terms.
- Survival. The terms of all sections, which by their nature are intended to extend beyond termination, shall survive termination of these Standard Terms for any reason.
- Force Majeure. Neither party shall be liable to the other for any delay or inability to perform its obligations under these Standard Terms or otherwise if such delay or inability arises from any act of God, fire, natural disaster, act of government, or any other cause beyond the reasonable control of such party which could not be avoided by the exercise of due care. Force Majeure shall not include computer viruses and computer related problems. In the event of such a delay or inability to perform, the time of performance shall be extended for a period of time equal to the length of the delay’ or inability to perform, provided that if either party is unable as a result of a force majeure to perform its obligations for a period longer than thirty (30) days, the other party shall have the right to terminate the Purchase Order.
- Arbitration. The parties agree that any claim or dispute between them or against any agent, employee, successor, or assign of the other, whether related to these Standard Terms or otherwise, and any claim or dispute related to these Standard Terms or the relationship or duties contemplated under this contract, including the validity of this arbitration clause, shall be resolved by binding arbitration by the American Arbitration Association (AAA). Any award of the arbitrator(s) may be entered as a judgment in any court having jurisdiction. In the event a court having jurisdiction finds any portion of these Standard Terms unenforceable, that portion shall not be effective and the remainder of these Standard Terms shall remain effective. Information and the AAA rules (“Rules”) may be obtained at the website: http://www.adr.org/aaa/faces/rules. The parties hereby acknowledge and agree that they are aware of the Rules. These Standard Terms shall be governed by and interpreted under the Federal Arbitration Act, 9 U.S.C. Sections 1-16.
- Attorneys’ Fees. Should any litigation (including any arbitration) be commenced between the parties hereto or their representatives concerning any provision of these Standard Terms or the rights and duties of any person or entity in relation thereto, the party prevailing in such litigation shall be entitled, in addition to such other relief as may be granted to an award of all actual attorneys’ fees and costs incurred in such litigation, without regard to any schedule or rule of court purporting to restrict such an award, including, without limitation, actual attorneys’ fees, costs and expenses incurred in connection with (i) enforcing, perfecting and executing such judgment, (ii) post-judgment motions and/or appeals; (iii) contempt proceedings; (iv) garnishment, levee, and debtor and third-party examinations; and (v) collateral bankruptcy litigation.
- Injunctive Relief. A breach of any of the commitments contained in these Standard Terms may result in irreparable and continuing damage to either party for which there may be no adequate remedy at law, and either party is therefore entitled to seek injunctive relief as well as such other and further relief as may be appropriate.
- Notices. Whenever notice is to be given by any party to the other party under these Standard Terms, such notice shall be made by any one of the following methods; personally; by overnight courier service from which proof of delivery can be obtained, via next business day delivery, delivery charges prepaid; or by registered or certified mail, return-receipt requested. Notices shall be deemed received (a) if personally delivered or via overnight courier, upon date of delivery to the address of the person to receive such notice if delivered before 5:00 p.m., or otherwise on the business day following delivery to the party to whom the notice is addressed; (b) if mailed, two (2) business days after deposit in the U.S. mail. Any party may change its address and other notice information by giving the other party written notice of such change in accordance with this Section. All notices shall be sent to the addresses defined in the Purchase Order.
- Inspections. First American shall have the right at any time, and for a period of one (1) year subsequent to termination, to inspect and obtain, at its expense, copies of all written licenses, permits, approvals or any document issued by any governmental entity or agency to Vendor or its subcontractors, which are applicable to the performance of this Purchase Order.
- Right to Audit and Compliance. Upon five (5) business days advance written notice to Vendor, First American will have the right to audit all records that pertain to work performed by Vendor for First American, this includes compliance with these Standard Terms. Vendor shall provide First American reasonable access to review and audit all books, records or sales, transactions, shipments, invoices and credits associated with this Purchase Order, within 2 business days of First American’s request to review records. If any such review, or audit discloses overcharges, Vendor shall within thirty (30) days of the completion of such review or audit, remit to First American the amount overcharged. If the overcharges amount to more than $10,000, Vendor shall also pay the reasonable costs of such audit, of not less than $1,000 within thirty (30) days of the completion of such review or audit. Vendor’s books and records shall be maintained in accordance with generally accepted accounting principles consistently applied. Notwithstanding anything in these Standard Terms to the contrary, the rights of First American contained in these Standard Terms shall survive the expiration, or earlier termination, of this Purchase Order. Further, all appropriate records and reports pertaining to work performed at First American facilities by Vendor under this contract shall be maintained by Vendor for a period of two (2) years following the contract termination or expiration.
- Order of Precedence. In the event any express conflict or inconsistency exists between the provisions of a Purchase Order, SOW or Exhibit and the Master Service Agreement, the provisions of the SOW will control with respect to the interpretation of that SOW. No terms in a Purchase Order shall take precedence over the terms of the Master Service Agreement unless it is agreed upon in an applicable Statement of Work. The two parties will attempt to resolve any resolution of disputed interpretation of any clause of these Standard Terms first and if the conflict still exists, both parties agree to utilize the services of arbitration, as more specifically set forth in Section 26 above.