PURCHASE ORDER TERMS & CONDITIONS
Updated: June 1, 2014
Reference herein to “Dyn” shall mean Dynamic Network Services, Inc., and if any, its parent,
subsidiaries, and affiliates. Reference to “Purchase Order”, or “P.O.”, shall include this Purchase Order Terms and Conditions, any accompanying documents prepared by Dyn specifically referring to these Purchase Order Terms and Conditions, and any specifications, plans and/or attachments agreed to in writing by Purchaser. Reference to “Purchase Order” may refer to the purchase of goods, purchase of services, or license to access and use software. If there is no master agreement between Dyn and Supplier, this Purchase Order contains the entire agreement between the parties with respect to the subject matter hereof, supersedes all prior agreements, negotiations and oral understandings, if any, and may not be amended, supplemented, or modified in any way, except in writing signed by authorized representatives of the parties hereto. If there is a master agreement and this Purchase Order, the master agreement controls.
2. ACCEPTANCE OF PURCHASE ORDER.
The following shall be deemed effective modes of acceptance of this Purchase Order: (i) Supplier’s acknowledgement of Purchase Order; (ii) commencement of work; (iii) shipment of goods; (iv) providing access to and use of this software. Any acceptance of this Purchase Order is limited to acceptance of the
express terms set forth in this Purchase Order. Any proposal for additional or different terms or any attempt by Supplier to vary, in any degree, any of the terms of this Purchase Order in Supplier’s acceptance is hereby objected to and rejected. Any proposal for additional or different terms shall be deemed a material alteration, and this Purchase Order shall be deemed accepted by the Supplier without said additional or different terms.
3. CANCELLATION OF PURCHASE ORDER.
(a) with cause: Dyn reserves the right to cancel or terminate this Purchase Order, with cause, in whole or in part if there is: (i) any defect in workmanship or quality of the goods or services or software; (ii) any breach of Supplier’s warranties or obligations to the Dyn; and (iii) any delay or other departure from Dyn’s
instructions. If Purchase Order is terminated with cause, Supplier will fully refund Dyn for the terminated
goods or services or software.
(b) Without cause: Dyn may cancel or terminate this Purchase Order, without cause, as to all or any goods or
services or use of any software for which Dyn has not received at the time of notice of cancellation /
termination. If Purchase Order is terminated without cause, Dyn will pay the reasonable pro-rate cost of
goods properly received or services / software properly provided in accordance with this Purchase Order at
the time of the notice of cancellation / termination.
4. CHANGES TO PURCHASE ORDER.
Dyn reserves the right at any time to change this Purchase Order, including, without limitation, method shipping; time, place, and manner of delivery; and description of services / software. If such change causes an increase in costs required for Supplier to execute performance, an equitable adjustment may, at Dyn’s
discretion, be negotiated.
5. SHIPMENT OF GOODS.
(a) Supplier shall deliver goods F.O.B. destination to such location designated by Purchaser. Title and risk of loss shall pass to Dyn at Dyn’s shipping dock. Time is of the essence. Partial delivery shall not be permitted unless specifically authorized by Dyn. All expenses, including but not limited to detention, accessorial, offloading, etc., shall be borne by Supplier.
(b) Supplier’s bill of landing must reference: (i) P.O. number; (ii)Supplier’s invoice number; (iii) carrier name and routing information.
(c) Approved invoices for partial shipments shall detail balance to follow, or balance cancelled. Back ordered merchandise not shipped by completion date may be cancelled at Dyn’s discretion and at Supplier’s expense.
(d) Dyn may offset against amounts payable to the Supplier all present and future indebtedness of the Supplier to Dyn arising from any transaction.
6. RETURN OF GOODS.
Dyn shall have the right to return at Supplier’s expense, and for full credit or refund at Dyn’s
option, any goods that are: (i) in resale condition and returned to Supplier within thirty (30) days of Dyn’s receipt; (ii) damaged, defective or otherwise nonconforming; (iii) subject to an allegation that the use of such goods infringes an intellectual or other proprietary right of a third party; or (iv) are not manufactured, packaged, or labeled in accordance with industry standards and/or all applicable laws, ordinances, rules and regulations. In no event will Dyn be responsible for restocking fees or similar charges.
Supplier represents and warrants that: (i) the goods shall be of good quality, free from defects in design,
material and workmanship and conform to the samples furnished to Dyn, if any, and all descriptions and specifications; (ii) the good shall be of merchantable quality and fit for the particular purpose intended by Dyn; (iii) the services shall be performed to Dyn’s reasonable satisfaction and in a competent, workmanlike, and commercially reasonable manner; (iv) Supplier has the right to grant to Dyn, and hereby grants to Dyn, a non-exclusive, irrevocable, royalty-free, worldwide license to access and use the software; (v)the software shall conform to and function in accordance with any and all descriptions and specifications; (vi) Supplier shall comply with all applicable laws, rules, ordinances, Executive Orders, and regulations relating to the provision of goods or services or software subject to the Purchase Order; and (vii) the prices offered to Dyn are the lowest offered to any customer of Supplier and that all benefits and/or allowances offered to any other customer of Supplier will be offered to Dyn.
Supplier will indemnify, defend and hold Dyn harmless from and against any and all claims, actions, liabilities, losses, costs and expenses, including but not limited to attorney’s fees, arising from or in connection with: (i) Supplier’s breach of its obligations or representations and warranties to Dyn; (ii) an allegation that the goods or services of software infringe upon a third party’s intellectual property right; (iii) claims that the goods or services or software, or use thereof, caused personal injury, death, or real or personal property damage; and (iv) the negligence or other
acts or omissions of Supplier, its officers, employees, agents and contractors, in performance of this Purchase Order.
Supplier shall procure and maintain sufficient insurance coverage types and amounts to enable Supplier
to meet all obligations and duties under this Purchase Order and at law. Such insurance will include, but not be limited to coverage for loss, damage or claims arising from contractual liability, personal injury and property damage, automobile liability, worker’s compensation, products liability and intellectual property infringement.
Confidential Information of Dyn includes: (i) the existence and nature of the Purchase Order;
(ii) any information marked as “confidential” or “proprietary”; (iii) any information, regardless of form (written, electronic, or oral) or making, which is of the nature that a reasonable person would understand its owner would not want it disclosed to the public; (iv) any document, or data transaction between the parties; (v) matters of a technical nature such as trade secret processes or devices, know-how, data, formulas, inventions (whether or not patentable or copyrighted), specifications and characteristics of products or services planned or being developed, and research subjects, methods and results; (vi)
matters of a business nature such as employment policies and practices, personnel, including individual names, addresses, and telephone numbers, compensation and employee benefits. Supplier agrees not to disclose Confidential Information, except to employees or third parties subject to a similar confidentiality agreement who have a “need to know” to perform their responsibilities to Dyn. Supplier shall exercise due care and implement commercially reasonable procedures to protect and maintain the security of Confidential Information.
11. PROPRIETARY RIGHTS.
Supplier agrees to assign and hereby does assign to Dyn all of Supplier’s right, title and interest
including, but not limited to, the right to secure copyright, patent or trademark protection, in all concepts, ideas, materials, proposals, prototypes, advertising and promotional material, copy, graphics, themes, strategies, inventions, computer software programs, files, specifications, and any documentation related thereto which are produced in connection with services provided pursuant to this Purchase Order by Supplier.
This Purchase Order and any right or obligation of performance hereunder is not assignable or
delegable by Supplier without the prior written consent of Dyn. Invalidity in whole or in part of any term of this Purchase Order shall not affect the validity of any other terms. No express waiver shall operate beyond the express terms thereof, nor waive the same provision at any future date. Dyn’s right to require strict observances or performance of each of the terms and provisions hereof shall not be affected by a concurrent waiver of any other terms, or by any previous waiver, forbearance, or course of dealing. All rights and duties under this Purchase Order, including contracts arising therefrom, shall be governed in accordance with applicable Federal laws and/or the laws of the State of New Hampshire. Any suit brought by either party against the other arising from this Purchase Order shall be brought in a state or federal court of the State of New Hampshire. The relationship between the parties is non-exclusive and shall be that of an independent contractor. Nothing herein shall be construed as creating or constituting the relationship of employer/employee, franchiser/franchisee, principal/agent, partnership, or joint venture between the parties. Rights and remedies available to Dyn hereunder shall be in addition to and not a limitation of rights and remedies otherwise available to Dyn by law, including the Uniform Commercial Code. Without prior express written consent of Dyn, Supplier shall not: (i) use Dyn’s trademarks, trade names, service marks, or other proprietary markings; (ii) make any public announcements regarding this Purchase Order; or (iii) in any way list or identify Dyn as a reference for Supplier’s goods or services or software.