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 an agreement executed between the parties which shall take precedence over the terms herein.
- Warranty and Inspection. Vendor warrants that the Products/Services delivered will be free of all defects in design, workmanship and material. 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.
- 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.
- Billing Rates and Payment. Vendor shall submit invoices to First American, accompanied by supporting documentation, as may be reasonably required, in accordance with the payment schedule set forth in the applicable Purchase Order. Invoices submitted to First American require a Purchase Order number. First American shall pay all correct and properly documented invoices within forty-five (45) days of invoice receipt. 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.
- Trademarks and Licenses. Without the express written permission of First American, Vendor shall not use any trademarks, trade names, service marks, insignias or logos owned or used by First American (collectively, First American "Marks"). Neither Vendor, nor its affiliates and agents, if any, shall have any interest in or right to the use of First American Marks for any sales, marketing or publicity activities or materials.
- No Conflicts/Compliance with Law/Warranties. Vendor represents and warrants that it: (a) will comply with all applicable law, and (b) is free to provide the Products/Services without any restriction. Vendor will perform the services and provide the deliverables to be supplied to First American hereunder in a workmanlike manner and in compliance with all applicable laws.
- The parties acknowledge and agree that, as a result of Vendor providing the Products/Services requested in such Purchase Order, each party (a "Receiving Party") has and will have access to certain Confidential Information of the other party (a "Disclosing Party"). "Confidential Information" shall mean information of a party to this Standard Terms that is confidential, proprietary, or would be reasonably considered confidential, and anything defined under the Gramm-Leach-Bliley Act of 1999 and the regulations promulgated thereunder including nonpublic information relating to employees, clients, customers and applicants of First American. Confidential Information shall also include, but is not limited to, non-public information that, if disclosed in violation of the terms of this Standard Terms, could have a material adverse impact to a party's business or operations. Confidential Information shall not include information that: (a) is already known by the Receiving Party at the time of disclosure, (b) becomes publicly known through no act or fault of the Receiving Party, (c) is received by the Receiving Party from a third party without a restriction on disclosure or use, or (d) is independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party, as evidenced by the Receiving Party's records created in the ordinary course of business. The parties acknowledge that First American's computer network and systems and all documentation and materials related thereto, are the Confidential Information of First American. All Confidential Information shall remain the exclusive property of the Disclosing Party. At any time upon request by the Disclosing Party, the Receiving Party shall promptly surrender to the Disclosing Party all Confidential Information in the Receiving Party's possession, or destroy all copies thereof. Receiving Party will not retain any copies of the Disclosing Party's Confidential Information. Upon written request, an authorized officer of Receiving Party will certify in writing that Receiving Party has complied with this request for surrender or destruction. Notwithstanding the foregoing provision, Confidential Information stored electronically in Receiving Party's archives may be retained in accordance with Receiving Party's archive policies and procedures, provided that all such Confidential Information so retained shall remain subject to the use and disclosure restrictions of this Standard Terms until such Confidential Information is destroyed.
- The parties agree that the Receiving Party shall: (a) use and reproduce the Disclosing Party's Confidential Information only to perform its obligations hereunder, (b) restrict disclosure of the Disclosing Party's Confidential Information to its employees and contractors with a need to know the Confidential Information to enable the Receiving Party to perform its obligations under this Standard Terms and who have signed confidentiality agreements with terms at least as stringent as those herein, and (c) not disclose the Disclosing Party's Confidential Information to any third party (including, but not limited to, any third party consultant, contractor, or agent) without first obtaining such third party's agreement to maintain the confidentiality of the Disclosing Party's Confidential Information under terms and conditions at least as stringent as those set forth herein. Each party agrees to comply with the privacy and safeguarding requirements of the Gramm-Leach-Bliley Act of 1999 and the applicable regulations and guidelines thereunder with regard to the information of the other party that is subject to such act regulations and guidelines. Notwithstanding these requirements, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent it is required to do so under law or in a judicial or other governmental investigation or proceeding, provided the Receiving Party provides notice to the Disclosing Party in order that the Disclosing Party may seek a protective order, and that such information disclosed is for the limited scope and purpose of the investigation or proceeding. In the event of a breach of Confidential Information while in the Receiving Party's possession, the Receiving Party shall notify the Disclosing Party immediately of such breach, and shall cooperate and assist the Receiving Party in providing details regarding the breach, and any needed remediation. Should a breach of First American Confidential Information occur, Vendor is to promptly notify First American by phone by calling (877) 752-1184, and by email to InformationSecurityIncidents@Firstam.com.
- 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.
- 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.
- 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.
- 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.
- Insurance. Vendor, at its sole cost and expense, shall maintain appropriate levels of insurance sufficient to provide coverage against all claims arising out of its obligations pursuant to cover the types of Product/Services provided.
- 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 is solely responsible for all taxes, withholdings, and other similar statutory obligations for all personnel, including, but not limited to, Worker's Compensation insurance. Vendor hereby agrees to indemnify and defend First American against any and all claims made by any entity on account of an alleged failure by Vendor to satisfy any such tax, withholding obligations, or contributions, including penalties and interest.