Terms and Conditions
Except as otherwise specified herein, Supplier commencement of performance under this Purchase Order constitutes Supplier acceptance of the terms and conditions specified below.
A. THE FOLLOWING ARTICLES SHALL APPLY TO BOTH THE PURCHASE OF GOODS AND/OR SERVICES:
1. DEFINITIONS. Unless more specifically defined elsewhere in this Purchase Order, the following terms, when initially capitalized, shall have the meanings indicated below:
A. Company. Capital One Services, LLC., a Delaware company with a principal office in Tysons, Virginia, and any/all of its parent, affiliates or subsidiaries, or a company with which it is merged (including acquisition by or of Company).
B. Delivery. The date that the Goods are received by Company or a designated agent of the Company at the "SHIP TO" location identified on the front of this Purchase Order.
C. Goods. All material, equipment, supplies, printing, and automated data processing, hardware and software to be provided by Supplier as required by this Purchase Order.
D. Key Personnel. Supplier personnel named and identified by Supplier to perform Services hereunder.
E. Price. The price or costs established at the time of order placement for Goods or Services; provided, however, Supplier will give Company the benefit of any price reductions available or in effect at the time of shipment of Goods.
F. Purchase Order. This order issued by Company for Goods or Services, including the Statement of Work, if any, attached hereto, and the terms and conditions contained herein.
G. Services or Work. All services to be performed by Supplier as described in this Purchase Order or a statement of work (“Statement of Work”) attached hereto.
H. Supplier or Vendor. The entity responsible for providing Goods and/or Services identified by this Purchase Order.
I. Work Product. All documents, reports, analyses, drawings, designs, images, works of art, test results, marketing research data, computer programs, software object and source code, documentation, enhancements, modifications and other materials prepared by or for Supplier in the course of Supplier's performance under this Purchase Order, or any derivation of the foregoing.
A. Each article or provision of this Purchase Order has been subject to the mutual consultation, negotiation, and agreement of Supplier and Company, and shall not be construed for or against either party.
B. Except as otherwise provided herein, both parties agree that the terms of this Purchase Order are the complete agreement between the parties relative to this transaction.
C. All terms and conditions contained in this Purchase Order will be superseded by the terms and conditions of any contract between Company and Supplier that is referenced in the Purchase Order as a basis for the transaction, including by Contract ID or a contract number used by Company to identify the underlying contract.
3. ENTIRE AGREEMENT. COMPANY HEREBY GIVES NOTICE OF ITS OBJECTIONS TO ANY CONFLICTING OR ADDITIONAL TERMS EXCEPT THOSE THAT MAY BE ACCEPTED BY COMPANY IN WRITING.
4. INDEMNITY. Supplier shall indemnify, hold harmless and defend Company and its officers, directors, employees, agents and contractors from and against any and all damages, losses, claims, expenses, fines and penalties (including reasonable attorneys' fees Company may incur), including but not limited to claims arising out of alleged patent or copyright infringement, trade secret misappropriation, injury to or death of persons or damage to property, arising from or in connection with the Goods or Services provided by Supplier under this Purchase Order, whether such liabilities arise in contract, tort, regulatory action or otherwise, either directly or indirectly, and including the acts or failures to act of Supplier's agents, subcontractors, officers, directors or employees. Additionally, Supplier agrees to assume full responsibility and will reimburse Company for any loss of or damage to Company's property caused by the acts or failures to act of employees of Supplier. Supplier shall not compromise or settle, or admit any liability with respect to, any claim that Supplier is obligated to indemnify Company for under this Purchase Order without Company’s prior written consent.
The foregoing notwithstanding, Company shall not be liable for any special, incidental or consequential damages, including loss of business or loss of profits.
5. CHANGES. No substitution, change or deviation shall be made by Supplier except by written consent or by issuance of a written change order from Company. Company may, at any time, by written change order and without notice to Supplier's surety, if any, make changes in, additions to or deletions from the Goods to be provided or the Work to be performed pursuant to this Purchase Order. If Company and Supplier cannot agree to an increase or decrease, if any, in the Price for such change order or the time required for performance of Work changes, Company may terminate this Purchase Order pursuant to Article A.15.
6. COMPLIANCE WITH LAWS.
A. General. Supplier shall comply with all federal, state and local laws, rules, regulations, orders and ordinances applicable to the Goods or performance of the Work, including but not limited to all laws, rules, regulations, orders and ordinances pertaining to occupational health and safety and privacy of information.
B. Employment. Without limiting the generality of the foregoing, Supplier shall comply with all applicable federal, state and local employment and employee benefits laws, regulations and orders, including with respect to work authorization and immigration status. In addition, Supplier shall not discriminate against any employee or applicant for employment because of race, color, religion, disability, sex, national origin, age, veteran status, genetic information or any other unlawful criterion and shall comply with all applicable laws against discrimination and all applicable rules, regulations and orders issued thereunder or in implementation thereof. Capital One is a federal contractor and as such, but only if applicable, the Equal Opportunity Clauses set forth in 41 C.F.R. §§ 60-1.4(a), 60-300.5(a), and 60-741.5(a), as well as the employee notice found at 29 C.F.R. Part 471, Appendix A to Subpart A are incorporated by reference herein. Capital One and Supplier, if applicable as a covered subcontractor, shall abide by the requirements of 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a). These regulations prohibit discrimination against qualified individuals on the basis of protected veteran status or disability, and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and individuals with disabilities.
C. Disclosure of Purchase Order. Company may disclose this Purchase Order and any information that it obtains hereunder to any government agency, regulatory authority or other person that Company has determined, in its discretion, has a need for such information.
D. Fines. Any fines or other penalties incurred by Supplier or its agents, employees or subcontractors for noncompliance with any laws, rules, regulations or ordinances shall not be reimbursed by Company but shall be the sole responsibility of Supplier. If fines, penalties or legal costs are assessed against Company by any government agency or court due to noncompliance by Supplier with any laws, rules, regulations or ordinances, or if the Goods or the Work to be furnished hereunder or any part thereof is delayed or stopped by order of any government agency or court due to Supplier's noncompliance therewith, Supplier shall indemnify and hold harmless Company against any and all losses, liabilities, damages, claims and costs suffered or incurred because of the failure of Supplier to comply therewith. Supplier shall reimburse Company for any and all legal or other expenses, including attorneys' fees through the appellate level, reasonably incurred by Company in connection with such losses, liabilities, damages or claims.
7. PATENTS, COPYRIGHTS AND TRADE SECRETS. Supplier shall, at its own expense, defend any suit or proceeding brought against Company based on an allegation that any portion of the Goods, or the Work, or use thereof for its intended purpose, constitutes an infringement or misappropriation of any claim of any patent, copyright, trade secret or other intellectual property right, provided Company notifies Supplier of such suit or proceeding in writing. Supplier shall pay all damages and costs, including reasonable attorneys' fees through a settlement or final judgment including any appeal, awarded in any suit or proceeding. Supplier shall indemnify Company against any costs and expenses incurred by Company, including expenses of providing information and assistance to Supplier for the defense of such suit or proceeding. If any component of the Goods or Work is, or Supplier believes it is reasonably likely to be, held to constitute infringement of any patent, copyright, trade secret or any other intellectual property right and its use by Company is enjoined, Supplier shall, at Company's option and at no cost to Company, procure for Company the right to continue using such component, replace said component with a substantially equivalent non-infringing component or modify said component so that it becomes non-infringing but remains substantially equivalent.
8. TAXES. All federal, state and local property, sales, license, privilege, excise, gross receipts, value added or other similar taxes that may now or hereafter be imposed on this transaction, any Goods or Service provided by Supplier hereunder, shall be paid by Supplier and shall be included in the Price.
9. ASSIGNMENT. Unless Company grants prior written consent, Supplier shall not assign any rights or delegate any duties or obligations hereunder or transfer or otherwise dispose of this Purchase Order or any part hereof or its rights, title and interest herein, nor assign any monies due or to become due hereunder. Company may freely assign this Purchase Order to any third party with which it is merged or to any affiliate, parent or subsidiary.
A. Governing Law. The laws of the Commonwealth of Virginia, including the Uniform Commercial Code as currently enacted in Virginia, shall govern the validity and construction of this Purchase Order. This Purchase Order shall not be governed by the United Nations Convention of Contracts for the International Sale of Goods. This Purchase Order shall be deemed to have been executed in Virginia regardless of the actual place of signing or the actual place of performance. However, the Virginia Uniform Computer Information Transactions Act (UCITA) will not govern any aspect of this Purchase Order or license granted hereunder. To the extent that any part of this Purchase Order or any license granted hereunder is unclear or disputed by the parties and UCITA, if applied, would clarify or resolve the issue, the parties agree to clarify or resolve the issue independently of UCITA by applying the intent of the parties at the time they entered into this Purchase Order. For all litigation which may arise with respect to this Purchase Order or associated with or relating in any way to the parties; interactions under this Purchase Order, including both contractual and tort claims, the parties irrevocably and unconditionally submit (i) to the non-exclusive jurisdiction and venue (and waive any claim of forum non conveniens and any objections as to laying of venue) of the United States District Courts for the Eastern District of Virginia or (ii) if such court does not have subject matter jurisdiction, to the courts of the Commonwealth of Virginia located in Henrico County or Fairfax County.
B. Non-Waiver of Rights. The failure of Company to demand strict performance of the terms of, or to exercise any right conferred in, this Purchase Order shall not be construed as a waiver or relinquishment of its right to assert or rely upon any such term or right in the future, or consent to any continuing or subsequent failure or breach.
C. Severability. In the event any provision, or any portion of this Purchase Order shall become or be declared unlawful, invalid, void or otherwise unenforceable, the rights and obligations of the parties shall be reduced only as required to remove the unenforceable provision or portion.
D. Survival. Neither completion of the Work, delivery of the Goods nor termination or cancellation of this Purchase Order shall be deemed to relieve Supplier of any obligations hereunder that by their nature survive completion of the Work or delivery of Goods, including but not limited to all warranties, guarantees, promises of indemnity, and confidentiality obligations.
E. Publicity. No information relative to this Purchase Order or the Work or Goods shall be released by Supplier for publication, advertising or for any other purpose without the prior written approval of Company.
F. Confidentiality. During the term of this Purchase Order, Company may communicate to Supplier certain information either orally or in writing to enable Supplier's personnel to render the Goods or Services hereunder. Supplier will treat and obligate its personnel and authorized subcontractors to treat such information or any reports, recommendation or Work Product which Supplier produces for Company, as Company proprietary and confidential information. Supplier, its personnel and authorized subcontractors will use at least the same degree of care as it employs to avoid unauthorized disclosure of its own confidential information, but in any event no less than commercially reasonable efforts, to prevent disclosing the Company proprietary and confidential information to unauthorized parties. Supplier is specifically prohibited from selling, renting, licensing, or distributing Company proprietary and confidential information and from retaining, using, making accessible, or otherwise disclosing Company proprietary and confidential information for a commercial purpose other than to fulfill its obligations under this Purchase Order. Upon the expiration or earlier termination of this Purchase Order, or upon the request of Company, Supplier will return or destroy any and all Company proprietary and confidential information, as directed by Company, and provide Company a written certification certifying that all Company proprietary and confidential information has been returned or destroyed pursuant to the foregoing obligation.
G. Hazardous Materials. If any of the materials furnished pursuant to this Purchase Order are designated by laws, rules, regulations or ordinances as hazardous or toxic, either in the form to be furnished or as waste upon disposal, Supplier shall notify Company and propose a nonhazardous or nontoxic alternative if such an alternative exists. Supplier shall package and label all such materials in accordance with applicable laws, rules, regulations and ordinances and with all applicable certificates, including a Materials Safety Data Sheet (MSDS), warnings and instructions for shipping, safety, handling exposure and disposal in a form sufficiently clear for use by non-technical personnel.
H. Subcontracting. Supplier shall not subcontract its obligations to provide the Goods or Services to any third party without the prior written consent of Company.
11. DISPUTE RESOLUTION. The parties shall make a good faith effort to resolve, without resort to arbitration or litigation, any dispute arising under or related to this Purchase Order. To the extent the parties are unable to resolve such dispute, either party may elect to submit the dispute to binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules of the AAA by the electing Party (the “Disputing Party”).
12. INVOICES AND PAYMENT.
A. Invoices. Except as otherwise stated in this Purchase Order, Supplier shall issue invoices upon full and complete Delivery of Goods or Services and shall submit the invoices via an online portal maintained by Company’s third party facilitator (currently Coupa™ but subject to change by Company upon notice) using login information provided by Company or Company’s third party facilitator. In no event will the Price exceed the price set forth on the front of this Purchase Order. Supplier shall submit invoices showing such details as reasonably specified by Company and, unless otherwise directed by Company, using the online portal.
B. Payment. Except as otherwise stated in this Purchase Order, Company shall issue payment for all proper invoices within sixty (60) days after receipt by Company. However, Company may withhold ten percent (10%) of all invoiced amounts pending receipt of any documentation that may be specified in this Purchase Order and acceptance by Company of all Goods or Services. In the event of any breach by Supplier of any provision of this Purchase Order, or in the event of the assertion by other parties of any claim or lien against Company or its property or facilities arising out of Supplier's performance under this Purchase Order, Company shall have the right to retain out of any payments due to Supplier an amount sufficient to protect Company completely from any and all losses, damages, expenses, fines and penalties actually incurred or reasonably anticipated to be incurred, until the breach has been cured or the claim or lien has been satisfied, terminated or released to Company's satisfaction. Payments made for Goods or Services shall not be deemed to constitute acceptance of such Goods or Services.
A. Title. Supplier warrants that the transfer of title of all items of Goods or Services provided pursuant to the Purchase Order shall be lawful. Supplier also warrants that such items shall be free and clear from any and all security interests, claims, demands, liens or other encumbrances at the time of transfer. In the event any item of Goods or Services fails to conform to this warranty, Supplier shall defend the title thereto and shall, at Company's option and at no cost to Company, promptly remove, or cause to be removed, any such security interest, claim, demand, lien or other encumbrance, or shall replace the item with a similar item conforming to this warranty.
B. Exclusivity. The warranties set forth herein are NOT exclusive and are in addition to other warranties whether statutory, expressed or implied. The remedies set forth herein are in addition to such other remedies as may be available to Company at law or in equity. Supplier shall not be excused from its obligations under this Article by Company's failure to inspect, failure to discover defective Goods, approval of or payment for the Goods or Work or any portion thereof.
14. WAIVER OF LIENS. Supplier waives, and shall require its subcontractors and suppliers of any tier to waive, any and all liens and claims, and the right to file and enforce or otherwise assert any such liens and claims, against Company or Company's property or facilities for Goods or Services furnished hereunder.
15. TERMINATION. Company may, without cause, terminate the Purchase Order at any time, in whole or in part, by providing written notice of termination to Supplier, such termination to be effective as specified in Company's notice but not earlier than one day after Supplier's receipt of such notice. Company will be discharged from all further obligations hereunder upon notice of termination.
16. FORCE MAJEURE. Neither Company nor Supplier shall be liable for any default or delay in the performance of its obligations under this Purchase Order if and to the extent such default or delay is caused, directly or indirectly, by fire, flood, earthquake, hurricane, other elements of nature or acts of God, riots, pestilence, civil disorders, governmental orders under the Defense Production Act, or any other similar cause beyond the reasonable control of such party; 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 taking reasonable precautions and could not reasonably be circumvented by the non-performing party through the use of alternate sources, workaround plans or other means (each such event, a "Force Majeure Event"), provided that the party experiencing the Force Majeure Event shall promptly give written notification to the other party within five (5) days after such party has learned of the Force Majeure Event. The party experiencing the delay shall undertake reasonable measures to make up for the time lost through delay without additional compensation. If performance by either party is delayed due to a Force Majeure Event, the time for that performance shall be extended for a period of time reasonably necessary to overcome the effect of the delay, subject, however, to Company's right to terminate the Purchase Order in whole or in part. In no event shall the following events, in and of themselves and without a causal relationship with one of the events described above, be deemed Force Majeure Events: the non-availability of voice or data networks for any reason, electricity or power failures, labor disputes or strikes, transit strikes and any degradation in performance or failure of any piece of equipment or software of Supplier used to provide the Goods or Services.
17. INSURANCE. Supplier and its subcontractors shall obtain, pay for and keep in force while providing Goods or Services hereunder, and thereafter as provided below, the following insurance:
A. Statutory workers’ compensation covering all state and local requirements;
B. Employer’s liability with a limit of $250,000 for one or more claims arising from each accident;
C. Commercial general liability, including coverage for completed operations, products liability and contractual obligations;
D. Comprehensive automobile covering all vehicles on Company’s property pursuant to Supplier’s performance hereunder, whether owned by Supplier or otherwise; and
E. The limits of coverage for sections C and D above shall be $1,000,000 per occurrence combined single limit bodily injury and property damage plus $2,000,000 excess or umbrella liability coverage.
In addition, Supplier's who are providing Services hereunder, and their subcontractors, shall obtain, pay for and keep in force while performing Services hereunder, and thereafter as provided below, the following insurance:
F. Professional liability for errors and omissions with a limit of $1,000,000 providing coverage for a period of at least two years following completion of the Services.
G. Crime and Fidelity Insurance with a limit of $1,000,000 which protects Company against the theft or otherwise wrongful conversion of Company's or Supplier's property, the property or assets of customers or patrons, or the cash receipts by Supplier's employees, agents or subcontractors.
Suppliers providing Services under this Purchase Order shall cause their insurers to: (i) waive all rights of subrogation against Company, and its officers, directors and employees; (ii) name Capital One Services, LLC., and the Capital One Services affiliates and their respective directors, officers, employees, agents, successors and permitted assigns and their employees as Additional Insureds under its commercial general liability policy and, if applicable, umbrella or excess liability policies; and (iii) give Company thirty (30) days written notice of any material change or alteration in the coverage specified above or cancellation of any policy of insurance required hereunder.
Suppliers shall cause their insurers to furnish certificates of insurance on standard ACORD forms (or comparable) evidencing that the above insurance is in effect and otherwise complies with the requirements of this Article. All insurance companies shall have A.M. Best ratings of not less than A- IX. The carrying by Supplier of the insurance required herein shall in no way be interpreted as relieving Supplier of any other obligations it may have under this Purchase Order.
B. THE FOLLOWING ARTICLES SHALL APPLY TO THE PURCHASE OF GOODS:
1. WARRANTIES. Supplier warrants that each item of Goods provided pursuant to this Purchase Order shall strictly conform to the description and specifications contained in this Purchase Order; shall be free from defects in workmanship, materials and design; and shall be merchantable and fit for its intended purpose. Supplier further warrants that each item of Goods provided pursuant to this Purchase Order is new and that, unless otherwise provided, no surplus, rebuilt, reconditioned or used Goods shall be provided pursuant to this Purchase Order.
Upon receipt of oral or written notice from Company of a warranty claim, Supplier shall, if required by Company, at its sole expense, promptly repair or replace, as determined by Company, all portions of the Goods that fail to conform to the above warranties. Supplier shall also perform such tests as Company may require to verify that the repairs or replacements comply with the requirements of this Purchase Order. The expense of all work incidental to such repair, replacement or testing shall be borne solely by Supplier. The above warranty shall apply to all Goods repaired or replaced by Supplier.
If Supplier fails within a reasonable time or refuses to repair or replace as required by Company, Company may, at its sole discretion, repair or replace or take other remedial action. Supplier shall indemnify Company for all costs so incurred.
2. INSPECTION AND EXPEDITING. Company shall have reasonable access to Supplier's manufacturing, design and other facilities, both on and off-site, as well as the facilities of Supplier's subcontractors and suppliers of any tier, for the purpose of auditing compliance with applicable laws, rules, regulations, orders and ordinances and compliance with Supplier's quality control and assurance programs, inspecting the Goods covered by this Purchase Order and expediting performance of this Purchase Order. Inspections by Company shall not relieve Supplier of its obligation to comply in all respects with this Purchase Order.
3. TITLE AND RISK OF LOSS. Unless otherwise specified, title and risk of loss for each item of Goods shall pass to Company upon Delivery.
C. THE FOLLOWING ARTICLES SHALL APPLY TO ALL SERVICES PROVIDED BY SUPPLIER INCLUDING, BUT NOT LIMITED TO, SERVICES PROVIDED IN CONNECTION WITH THE PURCHASE OF GOODS:
1. WARRANTIES. Supplier represents and warrants that Supplier, its employees and subcontractors have experience and expertise in performing services of the type required herein and that the Services performed hereunder, including the Work Product resulting therefrom, shall be performed in strict accordance with all conditions and requirements herein with due care and in conformity with reasonable and customary standards of professional skill and competence. If, within twelve (12) months after final acceptance of the Services, Company discovers that any of the Services performed by Supplier hereunder fail to conform to this warranty, Supplier shall, at Company's option and at no cost to Company, promptly correct or re-perform any Services performed by Supplier so that they conform to the warranty, provided that Company shall give Supplier written notice of the nonconformity within a reasonable time after discovery but in no event later than twelve (12) months after final acceptance of the Services. Supplier represents and warrants that Services provided under this Purchase Order will not limit or invalidate any warranty by a manufacturer of Goods or by any other party to Company.
Without limiting any other right of Company herein, in the event that Supplier is unable to satisfactorily correct or re-perform the Services, or in the event that material breaches of warranty shall occur more often than three (3) times during any thirty (30) day period, then in either of such events Company may, at its option, terminate this Purchase Order without any further liability to Supplier other than to compensate Supplier for accepted Services previously provided by Supplier for which Company has not paid as of the termination date.
2. OWNERSHIP OF WORK PRODUCT AND SUBJECT INVENTIONS.
All Work Product prepared by or for Supplier in the course of Supplier's performance of Services under this Purchase Order shall belong to Company, and Supplier grants to Company all right, title and interest, including copyright, in the Work Product. Supplier and its employees will disclose promptly to Company all ideas, inventions, discoveries and improvements, hereafter referred to as "Subject Inventions", whether or not patentable, relating to the Work hereunder, which are conceived or first reduced to practice by Supplier in the performance of the Work under this Purchase Order. Supplier agrees that all such Subject Inventions shall become the sole property of Company, and that during or subsequent to the term of this Purchase Order Supplier will execute and deliver to Company all such documents and take such other action as may be required to assist in obtaining patents and vesting title thereto in Company for the Subject Inventions.
Supplier agrees that any Work Product made by Supplier or its subcontractors in connection with the Services shall be considered 'works for hire' under the copyright laws of the United States and shall be the sole and exclusive property of Company and Company shall own all copyrights to such work.
Notwithstanding anything to the contrary herein, Company shall not acquire any ownership rights in any Supplier copyrighted training materials prepared exclusively outside the scope of this Purchase Order. Except for archival and back-up purposes, Company shall not reproduce or copy any such copyrighted training materials without Supplier's consent.
All documents, reports, analyses, drawings, designs, blueprints, images, test results, marketing research data, computer programs, software object and source code, documentation, enhancements, modifications and any other materials furnished to Supplier by Company or its agents shall remain the property of Company, and no such item shall be used for, or revealed, divulged or made known to, any person, firm or corporation without the prior written consent of Company. Supplier will return to Company all such items, together with any reproductions of such items that Supplier or its subcontractors may have made, or destroy such items, at Company's option, upon termination of this Purchase Order or on demand.
3. RIGHT TO AUDIT. Supplier shall keep accurate and complete books of account, records, documents and other evidence related to the pricing and performance of this Purchase Order, and any change or modification hereto. For all labor hour, time and material, expense or other payment provisions based on Supplier's costs, and for all claims for equitable adjustment, termination charges, additional compensation or damages for delay or other alleged breach of this Purchase Order by Company, Company or its representatives shall have the right to inspect and audit such books, records, documents and other evidence for the purpose of evaluating Supplier’s compliance with the terms of this Purchase Order and the accuracy and completeness of any request for equitable adjustment, termination charges, additional compensation or damages submitted by Supplier.
All materials and documents described above and required for such audit shall be made available at Supplier's offices, at all reasonable times, for inspection, audit or reproduction, until the later of the expiration of one (1) year from the date of final payment hereunder or the final settlement or disposition of any claim made pursuant to this Purchase Order. Each party shall bear its own costs incurred in connection with any such inspection or audit.
4. SUPPLIER'S PERSONNEL.
Company shall have the right upon written notice to require Supplier to remove any of Supplier's personnel for any reason. Supplier shall promptly replace any person that is removed by Supplier or Company, or who becomes unable to render Services, with a person of similar experience.
The Supplier's relationship to Company in the performance of this Purchase Order is that of an independent contractor. The personnel performing Services under this Purchase Order shall at all times be under Supplier's exclusive direction and control and shall be employees of Supplier and not employees of Company. Supplier shall pay all wages, salaries and other amounts due its employees in connection with this Purchase Order and shall be responsible for all reports and obligations respecting them relating to social security, income tax withholding, unemployment compensation, worker's compensation, and similar matters.
Company shall have the right of prior approval for any replacement of Supplier personnel assigned to perform Work under this Purchase Order. As long as any Key Personnel assigned to perform Services remain employed by Supplier, Supplier shall not reassign or replace these Key Personnel without Company's prior written consent.
5. DEFAULT. If Supplier: (i) fails to commence the Services, (ii) fails to execute the Services in accordance with this Purchase Order, (iii) breaches any other condition or (iv) fails to perform any other obligation of this Purchase Order, then in any such event Company may terminate this Purchase Order for default, provided, however, Company shall first have given Supplier written notice specifying the event of default and Supplier shall have failed to remedy such default within thirty (30) days or within the period specified for the Services stated on this Purchase Order, whichever is less, after receipt of such notice by Supplier.
If Supplier breaches or fails to perform any of its obligations under this Purchase Order, Company may, after giving thirty days’ notice to Supplier, remedy such default, utilizing such persons or firms and such equipment and materials as may be necessary for that purpose, and Supplier shall be responsible for the cost thereof. Company may recover from Supplier the amount of any loss or damage, liquidated or unliquidated, suffered or incurred as a result of such default, including but not limited to reasonable attorneys' fees, penalties, and increased costs. Company may deduct and withhold from payments otherwise due Supplier any amounts required or reasonably anticipated to be required to remedy such default or any other amounts owed to Company by Supplier.
The foregoing remedies for default by Supplier shall be considered distinct, separate and cumulative, and shall be in addition to and not in lieu of any other rights and remedies elsewhere in the Purchase Order or available to Company at law or in equity.
If this Purchase Order is terminated for default and a court later determines that good cause did not exist to terminate this Purchase Order for default, such cancellation shall be deemed a termination pursuant to Article A.15, and Company's liability shall be limited to the amount payable as termination costs hereunder.
6. TOTAL SATISFACTION. Services shall be performed by Supplier to the total satisfaction of Company.