GSI Commercial PO Terms

These terms and conditions of this Black Box Corporation, on behalf of its direct and indirect subsidiaries and affiliates (collectively, “Black Box”) purchase order (“PO”) constitute a binding agreement between you (hereinafter referred to as “Vendor” and Black Box. This PO expressly limits acceptance to the terms of this PO and Black Box hereby objects to any different or additional terms contained in any response to this PO. Vendor accepts this PO by either issuing an acknowledgment purchase order, performing services as set forth in in this PO or shipping the products as identified in this PO, unless Vendor and Black Box have entered into a separate written agreement, in which case such separate written agreement will govern. Moreover, Black Box may have entered into written agreements with its customers, and, if so, has delivered to its customers certain quotations that have been accepted by its customers, and/or has accepted certain purchase orders from its customers (collectively, the “Contract Documents”). The Contract Documents between Black Box and its customer are incorporated herein by reference, insofar as they relate in any way, directly or indirectly, to the applicable work covered by this PO. Vendor agrees to be bound to Black Box in the same manner and to the same extent as Black Box is bound to its customers under the Contract Documents, unless otherwise stated in this PO. Where, in the Contract Documents, reference is made to Black Box and the work or specifications therein pertain to Vendor’s work in this PO, such work or specifications shall be interpreted to apply to Vendor instead of to Black Box. Copies of any applicable Contract Documents shall, upon Vendor’s prior written request, be made available to Vendor for inspection at Black Box’s facility. Vendor’s relationship to Black Box in the performance of the work shall be that of an independent contractor, and this PO does not create an agency, partnership, or joint venture relationship between Buyer and Supplier or Supplier Personnel.
NOW, THEREFORE, intending to be legally bound hereby, Vendor and Black Box hereby agree as follows:

1. If Black Box is submitting this PO for purchasing the Vendor products and/or services listed in this PO (the “Vendor Products and/or Services”) for resale, Black Box shall determine, in its sole discretion, the price charged for the Vendor Products and/or Services, to its customers (“Black Box Customer”). Time is of the essence in this PO.
2. The price for each Vendor Product provided and/or Services rendered is set forth in this PO (“Purchase Price”). Except for taxes based on Vendor’s net income, Black Box will be pay or reimburse Vendor for all taxes imposed on Black Box or Vendor, unless Black Box presents Vendor with a valid exemption certificate. Such charges shall be shown as a separate line item on invoices. The Purchase Price for Vendor Products and/or Services is exclusive of any taxes. Payment of the Purchase Price for each Vendor product (including any freight, taxes or other applicable costs initially paid by Vendor but required to be borne by Black Box hereunder) and/or services rendered shall be made by Black Box to Vendor in United States dollars, net sixty (60) days from the later of (i) Black Box’s receipt of Vendor’s accurate invoice, or (ii) Black Box’s receipt of shipment of the Vendor products at the shipment address specified by Black Box or the date the services are completed (“Due Date”). Black Box shall have the right to set-off any amount due and owing by Vendor to Black Box against any amount due and owing by Black Box to Vendor under this PO. If Black Box reasonably disputes an invoice, Black Box shall pay the undisputed amount by the Due Date and submit written notice of the disputed amount (detailing the nature of the dispute, the invoice(s) disputed). If a dispute is resolved against Black Box, Black Box will pay the disputed amounts within thirty (30) days of the resolution of the dispute.
3. Black Box reserves the right to cancel, change or reschedule all or any part of this PO, including, without limitation, changing the method of delivery, shipping destination or addition/deduction, schedule and site of services to be performed, by providing Vendor with written notice thereof. Vendor shall use its best efforts to mitigate any costs incurred by Vendor as a result of such cancellation, change or rescheduling. If any such cancellation, change or rescheduling of this PO (not resulting from Vendor’s failure to perform its obligations hereunder) causes an increase or decrease in Vendor’s cost of performing its obligations under this PO, an equitable adjustment shall be made in the Purchase Price and/or the delivery schedule. Any claim by Vendor for such an adjustment shall be waived unless asserted by Vendor in writing within ten (10) days following Vendor’s receipt of written notice of the cancellation, change or rescheduling.
4. All Vendor Products and/or Services shall be marked for shipment or performed to Black Box’s address(es ) set forth in this PO, and delivered to a Black Box designated carrier, F.O.B. destination or performed at specified site. Risk of loss and title to the Vendor Products and/or Services shall pass to Black Box upon receipt at the ship-to address specified by Black Box or the date the services are rendered to Black Box and/or Black Box Customer (“Delivery”). In regards to Vendor products, Black Box reserves the right to select the carrier and method of shipment. All freight and other shipping expenses, as well as any special packing expenses pre-approved by Black Box in writing, shall be paid by Black Box.
5. Upon Delivery of any Vendor Products and/or Services, Black Box may, in its sole discretion, perform acceptance testing on the Vendor Products and/or Services. In the event such acceptance testing reveals a defect in the Vendor Products and/or Services, Black Box shall notify Vendor in writing that it has rejected such Vendor Products and/or Services, and Black Box shall have no obligation to make any payment, including, without limitation, any payment of shipping costs, for such rejected Vendor Products and/or Services. Black Box shall return such rejected Vendor Products and/or Services to Vendor, at Vendor’s expense, for immediate repair or replacement by Vendor or request the re-performance of such services.
6. If prior to acceptance, any work provided under this PO fails to meet the standards set forth herein, Black Box may elect to have Vendor correct or cause to be corrected any of the work which fails to meet such standards. Any such correction of the work shall be at no cost to Black Box. Nothing contained in this PO shall establish a limitations period with respect to the other obligations that the Vendor might have under the Contract Documents. Establishment of the period for correction of the work has no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which proceedings may be commenced to establish liability under the PO.
7. Vendor, its employees, and subcontractors shall be responsible in the performance of the work exercising the degree of skill and care required by customarily accepted good professional service provider and technical practices and procedures. Vendor warrants that (i) Vendor has all intellectual property rights necessary to sell and license the Vendor Products and/or Services to Black Box in accordance with the terms of this PO; (ii) the Vendor Products and/or Services shipped or performed under this PO will be free from any liens, encumbrances or defects in title; (iii) Vendor Products and/or Services sold to Black Box or performed under this PO are new and will be manufactured from new parts unless specifically identified as used or refurbished products; (iv) the Vendor Products and/or Services will be free from defects in material and workmanship for a period of twelve (12) months from the date of acceptance by Black Box; and (v) if Vendor is not the manufacturer of the Vendor product, Vendor shall pass through to Black Box any manufacturer warranties.
8. The foregoing warranties apply solely to Black Box and to Black Box Customers. Vendor shall have no obligation to repair, replace or re-perform the Vendor Products and/or Services if the Defect in the Vendor Products and/or Services is caused by modification of the Vendor product or the services rendered either not made or approved by Vendor or by use of the Vendor Products and/or Services other than in accordance with the user manuals, training materials, descriptions, specifications, schematics, technical manuals, supporting materials and other information in printed or electronic form relating to the Vendor Products and/or Services (“Documentation”).
9. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, VENDOR DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES ON PRODUCTS FURNISHED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
10. AT ANY TIME DURING THE WARRANTY PERIOD DESCRIBED IN SECTION 7 ABOVE, BLACK BOX MAY RETURN TO VENDOR, FOR REPAIR, REPLACEMENT OR REQUEST RE-PERFORMANCE, ANY VENDOR PRODUCTS AND/OR SERVICES THAT DO NOT MEET THE REQUIREMENTS SET FORTH IN SECTION 6 OR OTHERWISE FAIL TO MATERIALLY CONFORM TO THE SPECIFICATIONS OR TERMS AND CONDITIONS OF THIS AGREEMENT. VENDOR SHALL REPAIR, REPLACE OR RE-PERFORM THE NON-CONFORMING VENDOR PRODUCTS AND/OR SERVICES AND RETURN THE SAME TO BLACK BOX, AT VENDOR’S EXPENSE, AS SOON AS POSSIBLE, BUT IN NO EVENT LATER THAN FIVE (5) BUSINESS DAYS AFTER VENDOR’S RECEIPT OF THE NON-CONFORMING VENDOR PRODUCTS AND/OR SERVICES. IF VENDOR DOES NOT REPAIR, REPLACE OR RE-PERFORM THE NON-CONFORMING VENDOR PRODUCTS AND/OR SERVICES WITHIN SUCH TIME PERIOD, BLACK BOX MAY OBTAIN A FULL REFUND OF THE AMOUNTS PAID BY BLACK BOX TO VENDOR FOR THE NON-CONFORMING VENDOR PRODUCTS AND/OR SERVICES, INCLUDING, WITHOUT LIMITATION, FREIGHT COSTS FOR RETURN OF THE NON-CONFORMING VENDOR PRODUCTS AND/OR SERVICES TO VENDOR. REPAIRED, REPLACED OR RE-PERFORMED VENDOR PRODUCTS AND/OR SERVICES SHALL HAVE A TWELVE (12) MONTH WARRANTY OR SUCH GREATER PERIOD OF TIME AS MAY REMAIN IN THE WARRANTY PERIOD AS SET FORTH IN SECTION 6. VENDOR SHALL REIMBURSE BLACK BOX FOR ANY COSTS OR EXPENSES (INCLUDING RETURN FREIGHT COSTS) INCURRED BY BLACK BOX ASSOCIATED WITH THE REPAIR, REPLACEMENT OR RE-PERFORMANCE OF THE NON-CONFORMING VENDOR PRODUCTS AND/OR SERVICES. IF REQUESTED BY BLACK BOX, VENDOR WILL, AT VENDOR’S EXPENSE, PROVIDE INTERIM PRODUCTS OR SERVICES FOR USE WHILE THE NON-CONFORMING VENDOR PRODUCTS AND/OR SERVICES ARE OUT FOR WARRANTY REPAIR (IF REQUESTED BY BLACK BOX, SUCH INTERIM PRODUCTS OR SERVICES WILL BE PROVIDED PRIOR TO BLACK BOX’S RETURN OF THE NON-CONFORMING OR REQUESTING RE-PERFORMANCE OF VENDOR PRODUCTS AND/OR SERVICES FOR WARRANTY SERVICE).
11. 11. Vendor agrees to conduct investigative background inquiries on all Vendor employees that are supplied to Black Box to perform the work and who are to be on Black Box’s or its customer’s premises. In addition, Vendor acknowledges that Black Box maintains a drug- and alcohol-free workplace as required by law. Vendor agrees that any failure to comply with Black Box standards, policies, and procedures for maintaining a drug- and alcohol-free workplace is a material breach of this PO and constitutes grounds for immediate termination of this PO. Vendor employees and agents, while on Black Box or customer’s premises or otherwise engaged in the work, shall refrain from unauthorized consumption or possession of alcoholic beverages and the possession, sale, use or distribution of unauthorized drugs. At its option and subject to applicable law, Black Box shall be entitled to request and receive written verification from Vendor of Vendor’s drug testing of its employees who are to be on Black Box or customer’s premises prior to entry of Vendor employees and/or agents onto such premises. Vendor shall have the obligation to replace its personnel with a suitable substitute or substitutes within a reasonable time.
12. Vendor hereby grants to Black Box a non- exclusive right to sublicense any intellectual property rights in the Vendor Products and/or Services, either directly or indirectly through resellers and distributors, to Black Box Customers solely for use in the Vendor Products and/or Services purchased by such Black Box Customers. Any sublicenses granted by Black Box pursuant to this Section shall be perpetual.
13. Vendor hereby grants to Black Box a royalty-free, non-exclusive, worldwide and perpetual right and license to use, reproduce, distribute and prepare derivative works of all Documentation. Black Box agrees to retain all proprietary marks, legends and patent and copyright notices that appear on the Documentation and all whole or partial copies thereof.
14. Black Box shall retain any and all right, title and interest, including, without limitation, all intellectual property rights, in and to any Black Box supplied materials.
15. Except as otherwise expressly set forth herein, Vendor shall retain all intellectual property rights in and to the Vendor Products and/or Services, and no right or license is granted by this PO to Black Box to use, copy, sublicense or otherwise transfer any intellectual property rights in the Vendor Products and/or Services or to make any modifications to, or derivative works from, such intellectual property rights.
16. Vendor shall defend, indemnify and hold harmless, at its expense, any action brought against Black Box, its parent, subsidiaries and affiliates, officers, directors, owners or affiliated persons, employees and agents, to the extent that it is based on a claim that the purchase, use, sale, distribution or support of the Vendor Products and/or Services by Black Box (i) infringes any third party intellectual property right, or (ii) directly or indirectly causes damage to real or personal property, death and/or personal injury as a result of a defect in the design or manufacture of the Vendor Product; and Vendor shall indemnify Black Box from any costs, damages, settlement and fees finally awarded against Black Box in such action which are attributable to such claim. Black Box agrees to notify Vendor promptly in writing of any claim, to permit Vendor to defend, compromise or settle the claim, and to provide all available information and reasonable assistance regarding such claim. Vendor shall not be liable for any settlement, costs or fees incurred by Black Box on such action or claim unless authorized in writing by Vendor. Should any Vendor Product become, or in Vendor’s reasonable opinion be likely to become, the subject of a claim for infringement of a third party intellectual property right, Vendor shall, in addition to the foregoing defense and indemnity, (i) procure for Black Box and/or the Black Box Customers, at no cost to Black Box or the Black Box Customers, the right to continue to use the infringing Vendor Products and/or Services, (ii) replace or modify the infringing Vendor Products and/or Services, at no cost to Black Box or the Black Box Customers, to make such infringing Vendor Products and/or Services non-infringing, provided that the replacement or modified Vendor Products and/or Services provide equivalent or better functionality and performance; or (iii) if neither (i) or (ii) are reasonably commercially practicable, terminate the right to use such infringing Vendor Products and/or Services, remove the infringing Vendor Products and/or Services at Vendor’s expense, and grant Black Box credit of all payments made to Vendor with respect to such infringing Vendor Products and/or Services.
17. To the fullest extent provided by law, Vendor shall defend, protect, indemnify and hold harmless Black Box, its parent, subsidiaries and affiliates, officers, directors, owners or affiliated persons, employees and agents, from and against all claims, demands, and causes of action of every kind and character arising from Vendor’s breach of this PO or arising in favor of any person including but not limited to, Black Box, Black Box employees, Vendor, Vendor’s employees, subcontractors or other persons, (i) on account of personal injuries or death or damage to any property in anyway incident to or arising out of or claimed to have arisen out of the work performed by Vendor hereunder, (ii) arising out of or incident to Vendor’s operations hereunder, except to the extent caused by Black Box’s sole gross negligence, or (iii) the payment of any and all penalties, interest, liens or indebtedness or claims against Black Box’s property or the property of customer, or for work performed, or materials furnished or measured by the work performed, arising out of or incident to Vendor's operations hereunder. Such duty to indemnify shall apply whether the claim is fraudulent or groundless. Vendor agrees to reimburse Black Box for each and every cost or charge, including court costs, all expenses of litigation, and reasonable attorneys' and legal fees, if any, which Black Box, its successors, assigns or employees, may incur in defending against or prosecuting any such claims, demands, causes of action or suits brought pursuant to this PO. Furthermore, Black Box shall have a direct right of action against Vendor in the event Vendor fails to perform under this Indemnification, and Black Box may recover all of the costs of such action, including its reasonable attorneys' and legal fees and costs of collection.
18. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BLACK BOX’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF THIS PO SHALL NOT EXCEED THE TOTAL CHARGES UNDER THIS PO.
19. Black Box may terminate this PO without cause upon receipt of such notice, Vendor will stop performing any work and will mitigate to the fullest extent reasonably possible, all expenses to be borne by Black Box in the event of such termination. Upon termination of this PO, Black Box will pay to Vendor actual expenses incurred in association with the terminated work or portion thereof plus Vendor’s overhead and profit on the actual expenses, such overhead and profit not to exceed ten percent (10%); however, such payment shall not exceed the compensation set forth in this PO. Under no circumstances will Vendor receive overhead and profit on unperformed work.
20. Should Vendor neglect, delay or discontinue the work provided for in this PO which action has a material adverse effect on the successful completion of the work or violates any material provision of this PO, without the written consent of Black Box, any such acts or delay shall constitute default by Vendor under this PO and Black Box will give Vendor notice of such default in writing and, if Vendor fails to commence to correct and to diligently pursue the correction of such default within three (3) calendar days of the written notice of default, Black Box shall have the right to terminate without liability this PO or all or any portion of the work.
21. For POs originating in North America, this PO shall be governed by and construed under the laws of the Commonwealth of Pennsylvania, without reference to its conflicts of law principles. For POs originating outside of North America, this PO shall be governed by and construed under the laws of the country of the entity issuing the PO, without reference to its conflicts of law principles.
22. “Confidential Information” shall mean confidential or other proprietary information that is disclosed by either party to the other party under this PO, including, without limitation, business and product plans, service plans, pricing information, customer lists, and other confidential business information, whether in a written or non-written format. Confidential Information shall not include information which: (i) is or becomes public knowledge without any action by, or involvement of, the receiving party; (ii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; (iii) is intentionally disclosed by the disclosing party to a third party without restriction on disclosure; (iv) is rightfully received by the receiving party from a third party without a duty of confidentiality; or (v) is disclosed pursuant to any judicial or governmental order, provided that the receiving party gives the disclosing party sufficient prior notice to contest such order. Each party agrees (i) to observe complete confidentiality with respect to, and not to disclose or permit any third party or entity access to, the Confidential Information (or any portion thereof) of the other party without the prior written permission of such party (except such disclosure or access which is required to perform any obligations under this PO); (ii) not to utilize, except as specifically provided in this PO, the Confidential Information (or any portion thereof) of the other party; and (iii) to insure that any employees who receive access to the Confidential Information are advised of the confidential and proprietary nature thereof and are prohibited from copying, utilizing or otherwise revealing the Confidential Information, except as required to perform any obligations under this PO. Without limiting the foregoing, each party agrees to employ with regard to the Confidential Information procedures no less restrictive than the strictest procedures used by it to protect its own confidential and proprietary information and in no event less than reasonable procedures.
23. Insurance Requirements for Services to be Performed on Black Box’s or customer’s premises. Vendor will carry or cause to be carried and maintained in force throughout the entire term of this PO insurance coverages as described in subsections (1) through (6) below with insurance companies acceptable to Black Box. The limits set forth below are minimum limits and will not be construed to limit Vendor’s liability. All costs and deductible amounts will be the sole responsibility of Vendor. If any work provided for or to be performed under this PO is subcontracted, Vendor shall require the subcontractor(s) to maintain and furnish it with insurance equivalent to that which is required of Vendor.
    (1) Worker’s Compensation insurance complying with the laws of the State/Province or States/Province having jurisdiction over each employee, whether or not Vendor is required by such laws to maintain such insurance, and Employer’s Liability with minimum limits of $1,000,000 each accident, $1,000,000 disease each employee, and $1,000,000 disease policy limit, whichever is greater.
    (2) Commercial General Liability insurance on an occurrence form covering liability for bodily injury, including death, broad form property damage, personal and advertising injury, independent contractors, products and completed operations, and when applicable the explosion, collapse and underground exclusion will be deleted. Said policy shall include the following minimum limits of liability $2,000,000 General Aggregate, $2,000,000 Products & Completed Operations Aggregate, $1,000,000 Each Occurrence.
    (3) Automobile Liability insurance with a combined single limit of $1,000,000 each occurrence for bodily injury and property damage to include coverage for all owned, non-owned, and hired vehicles.
    (4) If professional services are provided under this PO, Vendor shall maintain Professional Liability Insurance covering claims arising out of wrong full acts arising out of Vendor’s error, omissions or negligent acts in an amount not less than $1,000,000 each wrongful act and $1,000,000 policy aggregate.
    (5) Property insurance on a replacement cost basis covering Black Box’s materials in your care, custody and control. The coverage shall be on an all risks basis and include the perils of flood and earthquake where warranted. The insurance policy shall name Black Box, its parent, subsidiaries and affiliated companies as loss payee as their interest may appear.
    (6)Employment Practices Liability Insurance covering liability for any employee claims of harassment, discrimination, wrongful termination, wrongful infliction of emotional distress and other alleged violation of an employment contract in an amount not less than $1,000,000. Such coverage shall also apply to any third party claims.
    Under the policies described in Subsections (1), (2), (3) and (5) above, Vendor agrees to waive and will require its insurers to waive any right of subrogation or recovery they may have against Black Box, its parent, subsidiaries, and affiliated companies.
    Under the policies described in Subsections (2) and (3) above, Black Box, its parent, subsidiaries and affiliated companies will be named as additional insured as respects Vendor’s operations and as respects any work performed under this PO. Any cost associated with naming these additional insured is included in the contract cost. The policies described in subsections (2) and (3) above will be primary insurance with respect to Black Box, its parent, subsidiaries and affiliated companies, and any other insurance or self-insurance maintained by Black Box, its parent, subsidiaries or affiliated companies is excess and not contributory with this insurance.
    Copy of Policy; Cancellation. In the event of a loss or claim arising out of or in connection with this PO, Vendor agrees, upon request of Black Box, to submit the original or a certified copy of its insurance policies for inspection by Black Box. Non-renewal or cancellation of policies described above will be effective only after written notice is received by Black Box from the insurance company in advance of any such non-renewal or cancellation.
    Insurance Certificates. Prior to commencing the work hereunder, Vendor will deliver to Black Box certificates of insurance on an ACORD 25 or 25S form evidencing the existence of the insurance coverage’s required above. Black Box will not insure or be responsible for any loss or damage, regardless of cause, to property of any kind, including loss of use thereof, owned, leased or borrowed by Vendor, or their employees, servants or agents, other than property which becomes a part of the work.
    Deductible Amount. Any deductibles for any policies identified above greater than $10,000 must be approved by Black Box.
24. Vendor assumes all responsibility for the payment of any compensation, wages, salaries, benefits, or taxes to or on behalf of Vendor, its employees, its subcontractors, any of its direct and indirect agents, servants or employees, and/or others by reason of this PO and shall be responsible for all obligations respecting them relating to FICA, income tax withholdings, unemployment compensation/contributions, pension contributions, other tax, benefit and payroll source deductions, and other similar responsibilities. Vendor shall defend, indemnify and hold harmless Black Box from and against any and all claims, costs, and/or losses whatsoever occurring or resulting from: (i) Vendor’s failure to pay any such compensation, wages, salaries benefits or taxes; (ii) Vendor’s failure to pay any such FICA, income tax withholdings, unemployment compensation/contributions, pension contributions, other tax, benefit and payroll source deductions, or other similar obligations; and/or (iii) the supplying to Vendor of work, services, materials, and/or supplies by Vendor’s employees, subcontractor's, or the employees, agents or servants thereof or other suppliers in connection with or in support of the performance of the work.
25. This PO constitutes the entire PO between the parties hereto relating to the subject matter hereof, and supersedes any previous contracts, agreements or understandings. No usage of trade or course of dealing by or between the parties shall be deemed to constitute any modification or amendment of the terms of this PO. No subsequent agreement among the parties concerning the Vendor Products and/or Services shall be effective or binding unless it is made in writing and executed by authorized representatives of the parties. Neither electronic mail, text message nor instant message shall be considered a “writing” sufficient to change, modify, extend or otherwise affect the terms of this PO.
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