Procurement Terms and Conditions
These Windstream Purchase Order Terms and Conditions (the "Terms and Conditions") govern orders placed by Windstream for products and/or services (each, an “Order”) to be provided by Seller (defined herein to include the Seller’s affiliates, and any of their respective subcontractors, officers, directors, agents and employees). Services or products ordered pursuant to these Terms and Conditions may be defined on a numbered statement of work (“SOW”) in the form or substantially similar to the form attached hereto and labeled Exhibit A. Each SOW is to be separately executed and when so executed shall become a part of the Terms and Conditions. Terms and conditions in said SOW(s) shall supersede any conflicting terms in the Terms and Conditions for only the specific service(s) or product(s) defined in said SOW(s). If a master agreement is in effect between Windstream and Seller, the master agreement shall prevail in the event of a conflict with these Terms and Conditions.
- Orders. In each invoice Seller shall identify, (a) for each individual product, the quantity to be purchased, and (b) for each service, the type of service ordered, and (c) the applicable C#/POSN as determined on the Order. Seller may include on the invoice, bill of lading, or other documentation pertaining to the Order additional information (such as the time and place of delivery or performance, delivery or performance date, description of products ordered, number of units to be delivered, or special instructions concerning the products and/or services) except to the extent such additional information conflicts with these Terms and Conditions. Seller shall be deemed to have accepted the Order unless Seller gives Windstream written notification of its rejection of the Order within two (2) business days after Seller's receipt of the Order. Substitute services or products are not permitted without Windstream’s authorization.
- Price and Payment. Seller shall invoice Windstream (a) for products purchased, no earlier than upon delivery of the products, and (b) for services purchased, no earlier than upon completion of the services. Windstream shall pay Seller, at the address indicated on the invoice, the invoiced amount within forty-five (45) days after Windstream's receipt of the invoice, provided that there is no bona fide dispute regarding the invoiced amount and that the products or services, as applicable, have not been rejected by Windstream. With respect to rejected products or services, payment shall be due forty-five (45) days after Windstream's receipt of the reissued invoice after acceptance of the products or services by Windstream. All amounts shall be paid in U.S. currency. Windstream may take a two percent (2%) discount if Windstream pays any invoice within fifteen (15) days of receipt. Invoices may be sent via mail to Windstream Accounts Payable, Attn: <Windstream Contact Name>, C# <position id>, <vendor #>, P.O. Box 18313, Little Rock, AR 72222, or an electronic image of an invoice may be submitted via e-mail to Corp.Po.Invoices@windstream.com.
- Taxes, Licenses and Permits. Taxes and fees of any nature are not included in the quoted prices for products or services unless the contrary is specifically agreed in the Order. Applicable state sales tax will be billed unless Windstream provides Seller with appropriate tax exemption certificates prior to the initial invoice. Except as otherwise provided herein or agreed in writing by the parties, Seller agrees to comply with all import/export laws and regulations and to obtain and to pay for all import permits, licenses, and all United States import duties and customs fees.
- Freight. Except as otherwise agreed by the parties in the Order, Windstream shall not be responsible for freight, transportation, insurance, shipping, storage, handling, demurrage or similar charges.
- Delivery. Unless otherwise stated in the Order, Seller shall not make delivery in installments.
- Cancellation/ Termination. Windstream may cancel or change an Order (a) with respect to products, at any time prior to shipment of the affected products, and (b) with respect to services, at any time prior to commencement of the services, or (c) at any time if: (i) such cancellation or suspension is caused by compliance with any law, order, regulation, request or imminent action of any government entity, or (ii) a Force Majeure Event occurs. “Force Majeure Event” means an event including, but not limited to, fire, flood, earthquake, natural disasters or acts of God, terrorist acts, riots, civil disorders, freight embargoes, government action, or the like, provided the non-performing party is without fault in causing such default or delay, and such default or delay could not have been prevented by reasonable precautions and could not reasonably be circumvented by the non-performing party through the use of alternate sources, workaround plans or other means.
Windstream may terminate the Purchase Order, and SOW, or any part thereof for its sole convenience at any time upon thirty (30) days written notice to Seller. Upon notice of such termination, Seller shall immediately stop all work and/or shipment of goods hereunder and cause its suppliers and/or subcontractors to cease their work against the Purchase Order. Seller shall be paid a reasonable termination charge consisting of a pro rata percentage of the Purchase Order price reflecting the percentage of work performed prior to notice of termination, plus actual direct costs resulting from termination. If payment of services has already been paid in full by Windstream, Seller will deduct the amount for services rendered from the total fees paid and refund Windstream the difference. Seller may not terminate any uncompleted SOW without Windstream's prior written consent.
- Delayed Shipment. The quoted time of delivery to Windstream shall be extended for such time as may be reasonably necessary if Seller is prevented from making delivery at the quoted time by a Force Majeure Event.
- Risk of Loss. Title to and risk of loss for products supplied pursuant to an Order shall pass to Windstream upon delivery to Windstream at the destination identified by Windstream in the applicable Order. Any breach of these Terms and Conditions shall have no effect upon the provisions controlling the risk of loss of the products and/or services described in the applicable Order.
- Rejection of Products and Services. Windstream shall give written notice to Supplier of any claim of rejection of (a) products within thirty (30) days after receipt of such products, and (b) services within thirty (30) days after completion of such services by Seller, and Seller shall thereupon be afforded a reasonable opportunity to inspect the products or completed work. If any portion of the products delivered to or services performed for Windstream are defective or are otherwise not in accordance with the Order specifications, Seller shall (i) refund the portion of the purchase price applicable to such defective products or services plus all freight or materials charges paid by Windstream with respect thereto, or (ii) Seller may, upon agreement by Windstream, replace such defective products or re- perform such defective services, as applicable. Any product delivered to or service performed for Windstream and not rejected by Windstream within the thirty (30) day period shall be deemed accepted by Windstream.
- Representations and Warranties. Seller warrants that: (a) all services and products shall perform and conform to the specifications as set forth by Windstream in these Terms and Conditions and any SOW(s), and shall be in good working order and free from defects, (b) it has all requisite ownership, rights and licenses to perform fully its obligations in connection with the Order and to grant to Windstream all rights to the services and products free and clear from any and all liens, adverse claims, encumbrances and interests of any third party, and (c) all services and products will be provided in accordance with industry standards and in a professional and workmanlike manner.
- Indemnification. (a) General. Seller shall defend, indemnify and hold harmless Windstream, Windstream affiliates and their respective customers, officers, directors, employees and agents (the “Windstream Indemnitees”) from and against any claims, suits, actions, losses, damages, expenses or liabilities (including reasonable legal fees) brought against any Windstream Indemnitees that may result by reason of (i) any death, bodily injury or property damaged based on Windstream's authorized use of any product supplied pursuant to this agreement; (ii) any negligence or intentional misconduct of Seller, or its employees or permitted subcontractors, under the Order; or (iii) the inaccuracy of any warranty or representation made by the seller. (b) IP Infringement. Seller shall indemnify, defend and hold harmless Windstream Indemnitees from and against any demand, suit, cause of action, liability, loss or expense (including reasonable legal fees) incurred by Windstream or the Windstream Indemnitees related to any claim, action or cause of action for infringement or violation of any patent, trademark, service mark, trade secret, know-how or other Intellectual Property right, proprietary right or other property right by any person, entity or enterprise as a result of any act, omission, neglect or misconduct by Seller or Windstream’s authorized use of any service or product supplied pursuant to an Order, regardless of the fact that services or products may have been accepted by Windstream and Seller may have received payment. If an injunction is issued affecting the services and/or products or Windstream’s use of the services and/or products if Seller determines that an injunction affecting the services and/or products or Windstream’s use thereto is likely to issue, Seller will promptly, at its expense, either (i) obtain the right to Windstream to use the services and/or products, (ii) replace or modify them with non-infringing services and/or products of equivalent functionality, or (iii) refund the amounts paid for the services and/or products and reimburse Windstream for all reasonable expenses for removal and replacement of the services and/or products.
- Assignment. Neither these Terms and Conditions, nor any rights or obligations under these Terms and Conditions, may be assigned or otherwise transferred by Seller without the written consent of Windstream, which shall not be unreasonably withheld. Windstream may assign these Terms and Conditions, or any of its rights or obligations hereunder: (a) to an affiliate of Windstream, or (b) in connection with any merger, consolidation, reorganization or sale of all or any part of its business or assets. These Terms and Conditions, shall inure to the benefit of and be binding upon the successors and permitted assigns of the parties.
- Documentation. Any amendments to these Terms and Conditions must be in writing and signed by Windstream in order to become effective and binding upon Windstream.
- Subcontracting and Seller’s Employees/ Independent Contractors. Seller may subcontract the services or a portion thereof only with Windstream's prior written permission. Seller agrees to screen its employees and its approved subcontractors in compliance with applicable laws to ensure they are not security risks and that they have the requisite training, skills and experience to perform the services.
It is expressly understood and agreed that Seller is an independent contractor and that Windstream shall not be liable for any of the Seller’s acts or omissions in the performance of Services. Seller represents and warrants that all persons it employs to do work for Windstream shall be employees of Seller exclusively and at no time shall be authorized to act as agents or employees of Windstream.
- Protection of Persons and Property.
- Precautions. Seller shall at all times take reasonable precautions to protect the persons and property of others which may be on or adjacent to the project site from damage, loss, or injury resulting from performance under these Terms and Conditions by Seller or any other party with whom Seller may have subcontracted. Seller shall not disturb or displace any protection installed by others. Any property moved or damaged by Seller during the course of performance of Services hereunder shall be returned or repaired by Seller, at Seller’s expense, to Windstream’s satisfaction.
- Clean Up. Seller shall keep the project site and surrounding area free from accumulation of waste materials or rubbish. Upon completion of the Project, and prior to final payment, Seller shall remove from and about the project site, all waste materials, rubbish, Seller’s tools, construction equipment, machinery and surplus materials. Seller shall dispose of all waste materials and rubbish in accordance with all applicable local, state and federal laws, regulations and ordinances.
- Interruption of Utility Services. Except as otherwise may be provided in the “Order” or “SOW”, all work shall be performed by Seller without interruption to or interference with any utility services. Seller shall identify the type and location of all utility services on, under or near the project site. Seller is responsible for all notifications to utility services prior to the commencement of work on the project site. Seller shall indemnify and hold harmless Windstream for any interruption of, or damage to, utility services in breach of this section.
- Compliance with Laws; Federal Government Contracting Notice; Conflict Minerals.
- Compliance Clauses. Each party shall, at its own cost and expense, perform its obligations under these Terms and Conditions in compliance with all applicable laws to which a party is subject. As a supplier to the U.S. Government, Windstream is required by U.S. Government Regulations to require that all Windstream vendors, suppliers, Sellers, and licensors comply with the following additional clauses: 48 CFR 52.225-13 Restrictions on Certain Foreign Purchases (Feb. 2006); and 48 CFR 52.247-64 Preference for Privately Owned U.S. Flag Commercial Vessels (Feb. 2006). For all vendor, supplier, Seller, and licensor contracts over $10,000, the following general terms additionally apply: 48 CFR 52.222-21 Prohibition of Segregated Facilities (Feb. 1999) and 48 CFR 52.222-26 Equal Opportunity (Mar. 2007). For all vendor, supplier, Seller, and licensor contracts over $15,000, 48 CFR 52.222-36 Affirmative-Action for Workers with Disabilities (Oct. 2010) shall apply. For all vendor, supplier, Seller, and licensor contracts over $100,000, the following general terms additionally apply: 48 CFR 52.219-8 Utilization of Small Business Concerns (May 2004) (in all subcontracts allowing further subcontracting with third parties by the vendor, supplier, Seller or licensor); 48 CFR 52.222-35 Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans (Sept. 2010); 48 CFR 52.222-37 Employment Reports on Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans (July 2011); and 48 CFR 52.203-6 Restrictions on SubSeller Sales to the Government (Sept. 2006). For contracts over $650,000 ($1,500,000 for construction) that allow the vendor, supplier, Seller, or licensor to further subcontract with third parties, 48 CFR 52.219-9 Small Business Subcontracting Plan (Oct. 2010) shall also apply.
- Small Business Subcontracting Plan. Pursuant to 48 CFR 52.219-9 Small Business Subcontracting Plan (Oct. 2010), if applicable, upon request by Windstream, a vendor, supplier, Seller or licensor whose contracts with Windstream (i) will total at least $650,000 ($1,500,000 for construction) and (ii) allow the vendor, supplier, Seller, or licensor to further subcontract with third parties, shall submit to Windstream a written Small Business Subcontracting Plan (“Subcontracting Plan”) that complies with the requirements of 48 CFR 52.219-9 and addresses subcontracting with small business concerns, including small businesses, veteran-owned small businesses, service-disabled veteran-owned small businesses, HUBZone small businesses, small disadvantaged businesses, and women-owned small businesses. The Subcontracting Plan shall become an exhibit attached to these Terms and Conditions, and incorporated herein by this reference. If a Subcontracting Plan is required under this Section, Windstream shall have the right, in its sole discretion, to terminate these Terms and Conditions, on written notice, if Seller fails to properly submit or follow a Subcontracting Plan. Additionally, Seller agrees to indemnify Windstream for any damages, of whatever nature, Windstream is required to pay under 48 CFR Part 52 if those damages result from Seller’s failure to properly submit or follow a Subcontracting Plan.
- To the extent not exempt, Seller (as well as any subcontractors) 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, sexual orientation, gender identity 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, sexual orientation, gender identity, national origin, protected veteran status or disability.
- Conflict Minerals. Seller warrants that it has evaluated the origins or source of the materials throughout their supply chain and has verified that the services and products provided hereunder do not contain any “conflict minerals” (as defined herein) or utilize such conflict minerals in the production thereof. In the event that Seller either (i) discovers that conflict minerals were utilized in any such services or products, or (ii) chooses to modify the services or products to include conflict minerals, then Seller shall immediately notify Windstream and Seller shall be required to either (y) provide a copy of its report filed with the Security and Exchange Commission under Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, or (z) provide a description reasonably acceptable to Windstream detailing the measures taken by Seller to assure the appropriate country of origin sourcing and chain of custody of such materials. Windstream reserves the right to terminate these Terms and Conditions in the event conflict minerals are determined to be utilized in any services or products provided hereunder, and the terms of this section shall be deemed a material provision of these Terms and Conditions. For purposes of this section, “conflict minerals” shall have the meaning as set forth under Dodd-Frank and shall include, without limitation, columbite-tantalite (coltan), cassiterite, gold, wolframite or their derivatives, or any other mineral or its derivatives determined by the US Secretary of State to be financing conflict in the Democratic Republic of the Congo or an adjoining country.
- OSHA Compliance. Seller shall have full responsibility for following all the requirements of the Occupational Safety and Health Act of 1970 (“the Act”) and all regulations issued under the Act, any other applicable safety procedures, and other such laws, regulations, customs, and practices as may be applicable for proper completion of work under these Terms and Conditions, without any recourse to Windstream for additional costs or time because of these requirements. Seller agrees that it is familiar with the Act and regulations issued under the Act and all of the other laws, regulations, customs, and practices referred to above. Seller further agrees that Windstream is not in a position to create, control, or abate any hazards associated with Services of Seller and that Windstream is not in a position to identify any hazards associated with Services. Seller further agrees that Windstream is relying upon Seller to take all reasonable steps necessary to avoid or abate any hazards associated with Services.
- Seller agrees that no unauthorized persons, including representatives of government agencies, shall be allowed to enter a project site without prior approval of Windstream.
- Seller agrees to indemnify Windstream for all citations and complaints arising under or connected with the Act and the regulations issued under the Act or any of the other laws, regulations, customs, and practices referred to above. Seller agrees to defend Windstream against such citations and complaints at Windstream’s election and to reimburse Windstream for all penalties, fines, costs, and attorneys’ fees incurred by Windstream as a result of such citations and complaints.
- Seller agrees to indemnify Windstream for all damages, including workers’ compensation costs, sustained by Windstream as a result of any injury to any of Windstream’s employees resulting from the negligence, recklessness, or willfulness of Seller.
- Seller further agrees to indemnify and hold Windstream harmless from any claims, damages, and complaints made by any employee of Seller against Windstream based upon or arising out of any injury or illness allegedly suffered by such employee or out of any condition or hazard associated with such employee’s work for Seller and/or contact with Windstream. Such indemnification includes the duty to pay Windstream’s attorneys’ fees, expert fees, and costs of defense.
- If there is a conflict between this section and any other provision of these Terms and Conditions, this section shall govern.
- Intellectual Property/Software. Seller grants to Windstream all rights and licenses necessary for Windstream to use, transfer, pass-through and sell Seller’s products and services and to exercise all rights granted under these Terms and Conditions and in the related Order. If requested by Windstream, Seller agrees to execute any other agreements necessary to enable Windstream to exercise its rights hereunder. Further, Seller represents and warrants that: (a) Seller is either the owner of all Intellectual Property and proprietary rights in the products and services including, without limitation, any Software or Seller is authorized to provide and/or grant the license to all Intellectual Property and proprietary rights, including any software provided on the Order (“Software”), (b) the Software and services shall be free from Viruses, and (c) Seller shall not insert into the Software any code that would have the effect of allowing unauthorized access, disabling or otherwise shutting down all or any portion of the Software, services or Windstream’s system or network or any portion thereof; or, if the Software does have a disabling code, Seller shall not invoke such disabling code at any time. For purposes of these Terms and Conditions, “Intellectual Property” means all intellectual property, including patents, inventions (whether or not the subject of patents or patent applications), copyrights, software, technical data, records, trade secrets, know-how (whether or not protected as a trade secret), trademarks, service marks, applications to register any such rights, and any other intellectual or industrial property rights of any kind whatsoever in any part of the world. “Virus” shall mean program code or programming instructions or set of instructions intentionally designed to disrupt, disable, harm, interfere with or otherwise adversely affect computer programs, data files or operations, or other code typically described as a virus or by similar terms, including but not limited to a Trojan horse, worm, backdoor, or time bomb. In the event a Virus is found to have been introduced by Seller, Seller shall, at no additional charge to Windstream, assist Windstream in reducing the effects of the Virus and, if the Virus causes a loss of operational efficiency or loss of data, to assist Windstream to the same extent to mitigate and restore such losses.
- Information Security Management. If applicable to Seller’s products or services, Seller shall have a security policy that contains: (a) guidance to and training for its personnel to ensure the confidentiality, integrity, and availability of information and systems maintained or accessed by Seller and/or its subcontractors with penalties or sanctions for non-compliance; (b) incident detection and management; (c) a data breach management plan; (d) computer and data backup processes, including without limitation computer logs; and (e) commercially reasonable standards and procedures for systems management which shall include use of state-of-the-art, commercial or professional-grade (i) security controls, (ii) identification and patching of security vulnerabilities on a commercially reasonable schedule, and (iii) anti-virus software.
- Adherence to Windstream Information Security Standards/Protocols. If Seller has access to any Windstream systems or its network, Seller shall adhere to general Windstream information security standards/protocols and it’s “Third Party Network Connection Policy,” provided by Windstream to Seller in writing from time to time. Seller shall only use any network connection for the specific lawful business purposes outlined in these Terms and Conditions and the Order and will allow only authorized employees, representatives or agents to access the network connection. Seller shall be solely responsible for ensuring that such employees are not security risks and shall: (i) maintain commercially reasonable technology controls to protect the network connection, including firewalls, anti-virus software, security monitoring and alerting systems (i.e., intrusion detection systems) and (ii) implement and maintain remote access solutions for personnel that are designed and audited in conformity with industry best practices.
- Limitation of Liability. EXCEPT FOR SELLER’S INDEMNIFICATION OBLIGATIONS AND EACH PARTY’S CONFIDENTIALITY OBLIGATIONS HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, FRUSTRATION OF ECONOMIC OR BUSINESS EXPECTATIONS, LOSS OF PROFITS, OR COST OF CAPITAL, OR DOWNTIME COSTS.
- Insurance. Upon Windstream’s execution of this Order, Seller shall provide Windstream with a certificate of insurance, which establishes that Seller has the coverage listed therein. The insurance policies to be listed in the certificate shall include automobile liability, commercial general liability, errors and omissions, umbrella liability and employers’ liability, each with limits not less than one (1) million dollars per occurrence. All insurance carriers shall be rated “A-“ or better by A.M. Best Co. Seller shall provide that the insurance listed in the certificate shall not be cancelled without Seller giving Windstream prior written notice of at least ten (10) days. Seller agrees to maintain the insurance coverage (as approved by Windstream) in force for a period of two (2) years following the termination of the Order.
- Confidential Information. Each party agrees that a separate, mutual non-disclosure agreement has been executed between the parties to these Terms and Conditions.
- In order that each party may protect its Intellectual Property, goodwill and product designation, neither party will have any right to use any Intellectual Property or designations of the other party, other than as otherwise agreed to in writing by the other party. Each party shall, at its own expense, perform its obligations under these Terms and Conditions and the Order and conduct its business in compliance with all applicable laws and governmental rules and regulations.
- Neither these Terms and Conditions nor the Order creates any agency, joint venture or partnership between Windstream and Seller. Neither party shall impose or create any obligation or responsibility, express or implied, or make any promises, representations or warranties on behalf of the other party, other than as expressly provided herein.
- No waiver of any provision of these Terms and Conditions shall be effective unless it is in writing and signed by the party against whom it is sought to be enforced. The delay or failure by either party to exercise or enforce any of its rights under these Terms and Conditions shall not constitute or be deemed a waiver of that party's right thereafter to enforce those rights, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right.
- These Terms and Conditions and the Order shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to its conflict of laws rules. All judicial proceedings to be brought with respect to these Terms and Conditions, the Order or any other dispute between the parties hereto pertaining to the Order and products purchased and sold thereunder shall be brought in Delaware, in a State or Federal Court of competent jurisdiction (the "Court") and each party accepts generally and unconditionally the exclusive jurisdiction of the Court and irrevocably waives any objection, including any objection to venue based upon forum non-conveniens, which either of them may now have of hereafter have to the bringing of any such proceeding with respect to these Terms and Conditions, the Order or any other dispute in the Court.
- All notices delivered in accordance with these Terms and Conditions shall be in writing, and personally delivered, sent by certified mail or overnight mail, if to Windstream, to:
4001 Rodney Parham,
Little Rock, Arkansas 72212,
Attention: Corporate Procurement,
and if to Seller, to such address as is provided by Seller to Windstream, or sent by fax to the other party at the fax number provided by such party, with confirmation to follow promptly by personal delivery, certified mail or overnight mail. Notices will be deemed effective upon personal delivery or delivery by fax to the other party, three (3) business days after mailing if sent by certified mail, or the next business day if sent by overnight mail. Either party may change its notice address or fax number by notice to the other party as provided in this paragraph.
- The Parties hereto expressly exclude the application of any non-United States laws and the United Nations Convention on Contracts for the International Sale of Goods from these Terms and Conditions, the Order, and any transaction that may be entered into between the Parties. If any term or provision of these Terms and Conditions is found by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect any of the other terms or provisions of these Terms and Conditions, but such term or provision shall be deemed modified to the extent necessary to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and agreements of the parties set forth in the remainder of these Terms and Conditions. The headings used in these Terms and Conditions are for convenience of reference only, do not constitute a part of these Terms and Conditions, and will not be deemed to limit, expand or in any way affect the interpretation of any term or provision of these Terms and Conditions.