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.
- Warranties and Inspection. Vendor warrants that the products/services delivered will be free of all defects in design, workmanship and material and Vendor is free to provide the products/services without any restriction. 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. 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. Both parties to these Standard Terms shall take reasonable and necessary steps to comply in all material respects with all applicable laws (including all federal, state, provincial, regional, territorial and local laws, statutes, ordinances, regulations, rules, executive orders, supervisory requirements, directives, circulars, opinions, interpretive letters and other official releases of or by governmental authority applicable to the parties herein) (hereinafter referred to as "applicable law" or "applicable laws") to the extent that each has responsibility for such compliance.
- 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: (i) information of a party to these Standard Terms that is confidential, proprietary, or would be reasonably considered confidential; and (ii) information defined as nonpublic personal information, personal information, personal identifying information, sensitive information, or other information given legal protection under applicable law. Confidential Information shall also include, but is not limited to, non-public information that, if disclosed in violation of these 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, unless the Receiving Party became aware of the Confidential Information as a result of the Confidential Information becoming available through unlawful or fraudulent means, (b) becomes publicly known through no act or fault of the Receiving Party, unless the manner in which the information becomes public was the result of an unlawful or fraudulent act, (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. All Confidential Information shall remain the exclusive property of the Disclosing Party.
- The parties agree that, during the term of these Standard Terms, the Receiving Party shall: (a) not knowingly retain, collect, use, sell, share, rent, release, disclose, disseminate, make available, transfer, or otherwise communicate orally, in writing, or by electronic or other means the Disclosing Party's Confidential Information except as necessary to perform the Receiving Party's obligations under these Standard Terms; (b) restrict disclosure of the Disclosing Party's Confidential Information to its employees with a need to know the Confidential Information to enable the Receiving Party to perform its obligations under these Standard Terms and who have signed confidentiality agreements with terms at least as stringent as those herein; and (c) not sell, share, rent, release, disclose, disseminate, make available, transfer, or otherwise communicate orally, in writing, or by electronic or other means the Disclosing Party's Confidential Information to any third party (including, but not limited to, any third party consultant, contractor, or agent) without first entering into a written contract with that receiving third party that expressly prohibits the receiving third party from retaining, collecting, using, selling, sharing, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means the Disclosing Party's Confidential Information for any purpose other than for the specific purpose of performing the services specified therein, and containing all other terms and conditions at least as stringent as those set forth herein.
- The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent it is required to do so under law, in a judicial or other governmental investigation or proceeding, or in an effort to prevent or protect against unlawful or fraudulent activity, 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 government or judicial investigation or proceeding.
- Vendor shall promptly notify First American at the earliest opportunity and in no case later than twenty four (24) hours upon becoming aware of a potential or actual breach of First American Confidential Information by calling (877) 752-1184, and by email to InformationSecurityIncidents@Firstam.com
- A Receiving Party shall only retain the Disclosing Party's Confidential Information for so long as is necessary for Receiving Party to provide the products/services for which the Confidential Information was provided to the Receiving Party. Once said Confidential Information is no longer needed for Receiving Party to provide the products/services, Receiving Party shall immediately and irrevocably delete and destroy the Confidential Information and all copies of the same. Upon request of Disclosing Party, Receiving Party shall certify by an officer of the Receiving Party that Confidential Information has been irrevocably deleted and destroyed as required by this Section. Notwithstanding the foregoing, Receiving Party may retain Disclosing Party's Confidential Information to the minimum extent necessary to comply with applicable laws, contracts, or judicial orders. 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 these Standard Terms until such Confidential Information is destroyed and provided that such Confidential Information does not include anything defined as "personal information" under the California Consumer Privacy Act of 2018.
- Vendor agrees to receive and carry out all directions, instructions, and requests by First American to delete any personal information, including any Confidential Information that Vendor has in its possession, custody or control pursuant to all applicable law, including but not limited to the California Consumer Privacy Act of 2018, and all regulations and guidelines promulgated thereunder. If Vendor fails to carry out said directions, instructions, or requests, Vendor will solely be responsible for all costs incurred associated with any regulatory investigation, enforcement action, or private claim arising out of said failure to comply with First American's directions, instructions, or requests, including but not limited to investigative costs incurred by First American, costs and attorneys' fees associated with any investigations or defending any regulatory enforcement actions or private lawsuits, or any other costs or fees associated with or arising out of Vendor's failure to comply with said directions, instructions, or requests.
- 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 products/services received and/or 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 products/services are delivered to First American prior to payment for such products/services.
- 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/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/service 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.