1. TERMS AND CONDITIONS / RELATIONSHIP OF THE PARTIES
These terms and conditions (collectively, the "Terms") control the purchase of goods and services listed in this Purchase Order ("Order") and constitute the full and complete agreement between Intuit Inc. ("Intuit") and Seller. Any prior or contemporaneous offer regarding such purchase is rejected. In the event of any conflict between any provisions written by Intuit that are part of this Order, including any exhibits attached hereto, and these Terms, shall control. The parties agree that if one or more agreements are referenced on the face of the Order, the terms and conditions of those agreements shall supersede any conflicting terms and conditions in this Order and the remaining terms and conditions of this Order shall remain in effect. There are no oral or written collateral representations, agreements or understandings except as referenced herein. Each party acknowledges that it is not entering into this Order on the basis of any representations that are not expressly contained in this Order. These Terms may not be waived or amended except in writing by Intuit. Seller shall provide goods and perform services in its capacity as an independent contractor. Seller acknowledges that Intuit is not responsible for providing any employee benefits (including group health plan coverage) to any employee of Seller who is staffed with Intuit. Any employee of Seller who is staffed with Intuit will not be considered a common law employee of Intuit with regard to the employer shared responsibility provisions under local and national laws concerning social security, disability insurance, unemployment compensation, federal, state, or local income tax withholding, or any other laws or regulations relating to employees. Nothing in this Order shall be construed to constitute Seller as an agent or employee of Intuit, or imply a joint venture or principal and agent relationship between the parties.
2. ORDER ACCEPTANCE / CANCELLATION
Issuance of this Order constitutes an offer expressly limited to the Terms. Seller's acceptance shall be deemed agreement to such Terms. Any modification of these Terms by Seller shall be deemed a material alteration and is expressly objected to and rejected by Intuit. Intuit reserves the right to revoke this offer at any time prior to acceptance, which acceptance shall take place only by (a) Seller's return of an executed unmodified copy of this Order, or (b) Seller's delivery of conforming goods to Intuit and Intuit's acceptance thereof. Furthermore, unless Seller accepts this offer within fifteen (15) days of issue, Intuit reserves the right to revoke this offer and reject any alleged acceptance by Seller. Notwithstanding any provision to the contrary and in addition to any other remedy, Intuit may cancel this Order in whole or in part upon notice in the event: (a) Seller fails to make delivery at the time provided; (b) Seller fails to comply with any other term or condition of this Order or any other Order from Intuit within ten (10) days of the demand; (c) a receiver or other similar officer is appointed over any or all of Seller's property or assets; (d) Seller files a voluntary petition in bankruptcy, or an involuntary petition in bankruptcy is filed against Seller; (e) Seller merges with or is acquired by a third party; or (f) Seller assigns, delegates or subcontracts this Order or any of its rights or obligations hereunder without prior written consent of Intuit. Intuit shall have no liability to Seller beyond payment of any balance owed for goods or services delivered to and accepted by Intuit prior to Intuit's sending notice of termination. Intuit may terminate these Terms for any reason upon ten (10) days written notice.
3. PRICE AND PAYMENT
Seller shall furnish goods or services in accordance with the Terms stated herein. Unless otherwise stated, the price terms contained herein include all costs or charges of any kind that will be paid by Intuit, and Intuit shall not be liable for any other costs or charges, including, without limitation, charges for inspection, packaging and shipping; all applicable sales, use and excise taxes; and any customs duties. Seller warrants that the prices to be charged for articles or services ordered herein are not in excess of prices charged to other customers similarly situated, for similar quantities of goods of like quality. Seller shall issue invoices only upon delivery of the goods or completion of services ordered by Intuit hereunder. All invoices shall be submitted to Intuit the following ways, in order of preference: or such other address as Intuit shall designate from time to time. Unless different payment terms are specified on the face hereof, Intuit shall issue payment within forty-five (45) days of its receipt of a correct and conforming invoice. Any invoices not received within such six (6) month time period shall be deemed forgiven by Seller. In the event Intuit pays for any of Seller’s goods or services through an Intuit credit card, Seller shall be responsible for any fraudulent charges and liabilities arising from unauthorized usage by Seller's employees. Payment is contingent upon delivery by Seller of conforming goods or satisfactory completion of services which shall be at Intuit’s sole discretion. In no event shall Intuit be obligated to pay interest or penalties on any amounts. Any attempt by Seller to create a security interest in delivered goods is expressly rejected by Intuit and shall be without effect.
Except as may be otherwise provided in this Order, the contract price shall include all applicable Federal, State and local taxes of any kind in effect on the contract date. Seller will indemnify Intuit and hold it harmless to the extent of any obligations imposed by law with respect to any withholding taxes, unemployment or disability insurance, or remittances that may be payable as a result of the performance of the Services including, but not limited to, taxes or remittances pursuant to the Income Tax Act (Canada), Employment Insurance Act, Canada Pension Act or any other applicable statute or similar items in connection with any payments made to Seller for the rendering of Services hereunder, either for itself or any of its employees or subcontractors. GST and HST means the goods and services tax or the harmonized sales tax administered pursuant to the Excise Tax Act (Canada) R.S.C. 1985. C. E-15, as amended and the regulations thereunder, including but not limited to provincial, state sales taxes, the Quebec sales tax, use taxes and/or any other similar taxes, duties, levies and/or charges of any nature that may be imposed or required to be collected by any federal, provincial territorial or local governmental entity or regulatory authority in connection with the services or goods contemplated hereunder. Unless otherwise expressly stated in the Agreement, any consideration such as amounts payable, fees or other compensation mentioned in the applicable SOW or purchase order are exclusive of GST/HST. 1) Intuit’s registered GST number is 139217491 RT0001. Intuit is not obliged under the Agreement or applicable SOW or purchase order to pay a. GST/HST until Seller provides a valid, compliant invoice for the taxable supply; and/or b. GST/HST invoiced by Seller past the statutory limit for Intuit to claim the amount as an input tax credit and shall be deemed forgiven by Seller ; and/or c. Any taxes based on the capital or net income incurred by Seller. 2) If applicable, the GST/HST must be specified on all invoices as a separate item. All items that are zero-rated, exempt or to which the GST/HST does not apply, must be identified as such on all invoices if required by applicable laws and/or regulations. 3) In the event any amount payable by Seller to Intuit under the Agreement or applicable SOW or purchase order is subject to GST/HST, Intuit shall collect the full amount of that GST/HST from Seller and said collection shall not reduce or somehow impact the amount to which Intuit is entitled under the Agreement or applicable SOW or purchase order. Seller will reimburse and indemnify Intuit for any GST/HST, interest and penalties, that Intuit may be compelled to pay on account of Seller’s non-payment. 4) Where Intuit has agreed to reimburse Seller for any costs or expenses, Intuit shall also reimburse Seller for any GST/HST incurred by Seller in respect of the relevant costs or expenses to the extent that neither Seller nor any member of any group of which it is a member for GST/HST purposes is entitled to credit or repayment from the relevant tax authority in respect of the GST/HST. 5) If Intuit is required to withhold any taxes, Intuit may deduct such taxes from amounts otherwise owed and pay them to the appropriate taxing authority. If Seller is exempt from payment of such taxes, Seller must provide Intuit with an original certificate that satisfies applicable legal requirements attesting to its tax-exempt status. Seller will be solely responsible for claiming any refund or applicable tax credits related to such withholdings. Seller must provide accurate information regarding its tax affairs as reasonably requested by Intuit.
5. CASH DISCOUNT AND SET OFFS
Discounts shall be calculated from the date the goods or services are received by Intuit at the destination designated in the Order. Intuit may at any time set off any amount owing from Seller to Intuit, or Intuit's subsidiaries, against any amount due and owing to Seller or any of Seller's subsidiaries, pursuant to this Order or any other agreement between Intuit and Seller or their respective subsidiaries or affiliates.
6. DELIVERY, F.O.B. POINT, TITLE. RISK OF LOSS
Delays in shipment or performance shall be reported immediately to Intuit. Intuit reserves the right to cancel this Order in whole or in part if Seller fails to make deliveries or timelines in accordance with the terms of the Order and any Corporate Purchase Agreement referenced therein. F.O.B. point shall be Intuit's location unless different shipping terms are specified on the face of this Order. Notwithstanding any prior inspection and F.O.B. point, Seller shall bear all risk of loss until final inspection and acceptance of goods by Intuit. Seller shall also bear all risk of loss with respect to goods or services rejected by Intuit. Subject to inspection and acceptance, Intuit will be liable for payment only for quantities of goods or services ordered and delivered. Over shipments shall be held at Seller's risk and expense for a reasonable time waiting shipping instructions. Shipping charges for returns are at Seller's expense. If any goods or services are defective in material or workmanship or otherwise not in conformity with the requirements of this Order, Intuit shall have the right to either reject them and to return them at Seller's risk and expense, including transportation both ways or to require their correction.
Seller acknowledges and agrees that any Software or other non-tangible electronic items provided by Seller to Intuit hereunder shall be downloaded electronically to the maximum extent possible, and Seller shall include a statement on its invoice that no tangible product was received by Intuit (if such statement is accurate). If the Software or non-tangible electronic items cannot be downloaded electronically, the Software and non-tangible electronic items shall be received on a "load and leave basis" (that is, Seller shall electronically install any Software and intangible electronic items using a physical CD and Seller shall retain the physical CD once the process has been completed).
Notwithstanding the above, Intuit does not exclude or limit liability in respect of injury to or death of any person caused by their negligence nor in respect of their fraud.
EXCEPT AS REQUIRED BY LAW, INTUIT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. INDEMNIFICATION, LIMITATIONS OF LIABILITY
Indemnification. Seller agrees to indemnify, defend, and hold harmless Intuit, its officers, successors, assigns, and its customers from and against any and all expenses, liabilities or other losses (including attorneys' fees and costs) arising from or by reason of goods and services covered by this Order, (i) Seller's acts, omissions or negligence; or (ii) any actual or claimed infringement of patents, trademarks, or copyrights, and to defend any suits based thereon, with respect to the goods and services furnished by Seller. Without limitation, such obligation to indemnify shall exist with respect to claims and demands relating to: (a) any goods or services; (b) any part of such goods or services; or (c) any combination of such goods, other hardware, and other software wherein such infringement would not occur but for such goods or services being a part of such combination, infringes on any patent, trademark, copyright, trade secret or other intellectual property right, foreign or domestic. If, as the result of an action as set forth above, the sale or use of any goods or services, or part thereof, is enjoined by court order, Seller shall, at its expense: (a) procure for Intuit the right to continue selling and using the goods, (b) replace or modify the goods with functionally-equivalent, non-infringing goods (subject to Intuit's approval and satisfaction), (c) return the purchase price of each unit of goods that Intuit is unable to ship due to the injunction, or (d) return the purchase price of the services that Intuit is related to the injunction. The indemnity set forth in this paragraph shall apply notwithstanding that the goods sold hereunder may have been produced by Seller in compliance with specifications furnished by Intuit. Intuit does not have any obligation to hold Seller harmless from any claim against Seller, its directors, officers, employees or agents, arising out of compliance with Intuit's specifications, except where the claimed infringement arises by reason of the equipment or materials furnished hereunder upon designs or drawings created by Intuit. Such obligation to indemnify shall also exist with respect to claims and demands, including, without limitation, injuries to persons or property and economic losses by reason of, arising out of, or in any way related to, in whole or in part, the goods and services covered by this Order. Any attempt by Seller to perform the following is expressly rejected and is ineffective: (a) disclaim any theory or grounds upon which Intuit, or successive purchasers of the goods and services covered hereby (collectively "Purchasers"), might recover against Seller; (b) limit its liability by means of a "Force Majeure" or similar term; (c) disclaim any kind or class of damages; (d) establish time limitation periods within which the Purchasers are obligated to assert claims against Seller. Intuit and any successive purchasers of the goods and services covered hereby retain and shall be entitled to assert all rights and claims available to them at law or equity against Seller in respect of the transactions subject to this Order. Limitation of Liability. Intuit shall not be liable for failure to perform its obligations hereunder if such failure is due (directly or indirectly) to any abnormal and unforeseeable circumstances beyond its reasonable control where the consequences would have been unavoidable despite all commercially reasonable endeavors. Such causes or conditions shall include, but shall not be limited to, industrial disputes, the failure of any system, software or telecommunication link, acts of God or of the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, shortages of labor or materials, freight embargoes, unusually severe weather, electrical power failures, communication failures, unavoidable delays, the errors or failures of third party systems, or other similar causes beyond its control. Intuit’s liability for any loss arising out of or relating in any way to this Order, or property damage, shall, in the aggregate, be limited to actual, direct, and general money damages in an amount not to exceed the amount paid hereunder for services during the previous twelve (12) months. This shall be the extent of Intuit’s liability arising out of or relating in any way to this Order t, including alleged acts of negligence, breach of contract, or otherwise and regardless of the form in which any legal or equitable action may be brought against Intuit whether contract, tort, or otherwise, and the foregoing shall constitute Seller’s exclusive remedy. Under no circumstances shall Intuit be liable for any special, consequential or indirect loss, loss of business, goodwill or loss of profit whether direct or indirect, lost interest, or for punitive or exemplary damages arising out of or relating in any way to this Order, even if Intuit has been advised of the possibility of such damages. Notwithstanding the above, Intuit does not exclude or limit liability in respect of injury to or death of any person caused by their negligence nor in respect of their fraud. EXCEPT AS REQUIRED BY LAW, INTUIT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Seller warrants that: (a) all goods or services will conform to the specifications and requirements or other descriptions referred to in this Order; (b) Seller has good title to the goods and has conveyed such title to Intuit free and clear of all liens and encumbrances; (c) all services performed under this Order are performed in a good and worker like manner that equals or exceeds the applicable industry standards; and (d) the goods are merchantable and fit for their intended purpose and are free from defects in design, material and workmanship. Seller acknowledges and affirms that Intuit has disclosed to Seller the purposes for which the goods are intended, and that Intuit is relying on Seller to furnish suitable goods. Such warranties shall survive any inspection, delivery, acceptance, or payment by Intuit of the goods or services, for a period equal to the longer of the date set forth in the manufacturer's warranty or six months following date of shipment, unless otherwise specified herein. Such warranties shall extend to Intuit, its successors, assigns, customers or users of its products.
9. COMPLIANCE WITH LAWS / EQUAL OPPORTUNITY
Seller shall comply with all applicable laws and regulations. Seller shall also comply with Intuit policies, procedures and requirements that relate to the nature of the transaction between Intuit and Seller, including Intuit's rules of conduct for on-site service providers, as applicable. Compliance with Intuit's policies, procedures and requirements shall not relieve Seller of its obligation to comply with all applicable laws and regulations.
10. OWNERSHIP/INTUIT'S PROPERTY
"Work Product" means all deliverables, inventions, innovations, improvements, and other works of authorship created by the Seller solely or jointly with others in the course of performing services for Intuit, or as a result of such services, whether or not they are eligible for patent, copyright, trademark, trade secret, or other legal protection. Seller acknowledges that all Work Product shall be the sole and exclusive property of Intuit, except that any pre-existing works created by Seller and third parties outside of the services but utilized in connection with such Services (the "Pre-existing Works") shall continue to be owned by Seller or such parties. Seller hereby assigns to Intuit its entire rights to the Work Product and agrees to execute any documents and take any action reasonably requested by Intuit (at Intuit's sole cost and expense) to protect the rights of Intuit in any Work Product. Seller agrees to notify Intuit in writing of any Pre-existing Works used in connection with any Work Product produced under this Order and hereby grants or agrees to acquire sufficient rights at Seller’s expense and grant, to Intuit a non-exclusive, perpetual, royalty-free license to utilize the Pre-existing Works in connection with the Work Product that does not encumber the Work Product, impose any duty upon Intuit to any third party, that Intuit has not expressly agreed to in writing. Intuit owns and will continue to own all rights, title, and interest in and to the Intuit Software, including without limitation, patents, copyrights, trade secrets and trademarks.
All materials including tools, furnished or paid for by Intuit, unless otherwise specified herein, shall be the property of Intuit, shall be subject to removal at any time without additional cost upon demand by Intuit, shall be used only in filling orders from Intuit, shall be kept separate from other materials or tools, and shall be clearly identified as the property of Intuit. Seller assumes all liability for loss or damage, with the exception of normal wear and tear, and agrees to supply detailed statements of inventory promptly upon request.
11. PRESS RELEASES
Seller may not issue press releases, endorsements or other public documents or announcements that reference Intuit or include statements by Intuit without the prior written consent of Intuit.
12. ASSIGNMENT OF RIGHTS
Seller shall not delegate any duties nor assign any rights under this contract without the written consent of Intuit and no such attempted delegation or assignment shall be binding on Intuit.
Intuit may at any time make changes in delivery schedules, quantities, requirements and specifications but no change will be allowed unless authorized by Intuit in writing. Unauthorized changes and related fees shall be at the expense of Seller. Intuit may also make changes in the method of shipping, packing and place of delivery by any means of communication. If such change affects cost or delivery schedules of this Order, an equitable adjustment shall be made, provided the Seller makes a written claim therefore within fifteen (15) calendar days from the date of Intuit's notification.
In the event of any proceedings, voluntary or involuntary, in bankruptcy or insolvency by or against Seller, including any proceeding under the applicable Federal or State Bankruptcy law currently in effect, or in the event of the appointment, with or without Seller's consent, of an assignee for the benefit of creditors or of a receiver, Intuit shall be entitled to elect to cancel any unfilled part of this Order without any liability whatsoever.
15. TITLE SPECIFICATION
Intuit shall at all times have title to all documents and specifications furnished by Intuit to Seller and intended for use in connection with this Order. Seller shall not disclose such documents and specifications to any person, firm or corporation other than Intuit's or Seller's employees or subcontractors. Seller shall, upon Intuit's request, promptly return all documents and specifications to Intuit.
16. OBJECTIVE QUALITY EVIDENCE
Seller agrees to maintain objective quality evidence for Goods in accordance with ISO 9002 quality assurance testing standards. Seller shall supply this evidence to Intuit upon request.
17. POTENTIAL DELAYS
Seller shall notify Intuit immediately if Seller obtains knowledge of any material shortage, governmental regulation, labor dispute or other event or impediment that could result in delay in delivery.
The rights and remedies provided by Intuit herein shall be cumulative and in addition to any other rights and remedies provided by law or equity (or provided under the Uniform Commercial Code).
All waivers must be in writing. Waiver of breach of any provision of this Order shall not constitute waiver of full compliance with such provision nor shall it be a continuing waiver or a waiver of any other breach.
20. GOVERNING LAW / VENUE / CONSENT TO JURISDICTION
This Order shall be interpreted and governed in all respects according to the laws of the Province of Ontario, Canada, without regard to its conflicts of laws principles. The parties hereby consent to the exclusive jurisdiction and venue in Toronto, in the Province of Ontario, Canada. Seller consents to the personal jurisdiction of such courts over Seller for all purposes.
21. French Language
It is the express wish of the parties that this agreement and all related documents are drawn up in English. C'est la volonté expresse des parties que la présente convention ainsi que les documents qui s'y rattachent soient rédigés en anglais.
22. PROVISION OF SERVICES
Intuit may request Seller to perform certain services (pursuant to Statement(s) of Work ("SOW"), which will expressly incorporate the Terms of this Order. The SOW will specify: (i) Seller's specific obligations, including all deliverables, improvements, and works of authorship the Seller shall perform, develop or provide in the course of performing the services; (ii) the performance schedule relating to such services; (iii) the applicable fees, discounts and payment terms for the services; and (iv) any other pertinent terms and conditions. Unless otherwise approved by Intuit, Seller will perform background screens on all individuals assigned to Intuit in compliance with all applicable laws and only permit those individuals that pass successfully to work on the Intuit account. Seller will allow Intuit to perform an audit of its background screening process on an annual basis. In the event of suspected fraudulent activity by an employee, Seller agrees to cooperate with any investigation conducted by Intuit or law enforcement agency.
23. ETHICAL PRACTICES
Seller understands that Intuit maintains policies stating that its employees and their immediate families may not give or accept a gift (including discounts) that might indicate the intent to improperly influence the business relationship between Intuit and any supplier, customer, partner, distributor or other third party. Seller understands that Intuit employees should never accept a gift (including any discount) that is given to create a sense of obligation on the employee's part with the intention of changing their behavior, and that Intuit employees may never receive any gift from an Intuit competitor. To the extent the policies are described above, Seller agrees to take no action that would violate these policies and Seller agrees to comply with the Intuit Supplier Code of Conduct. If Seller has any questions regarding these policies, it should contact: Intuit Inc., Procurement Vice President, P.O. Box 7850, Mountain View, CA 94039-7850.
24. SELLER'S REPRESENTATIONS AND CONVENANTS
Seller agrees to perform services with a standard of care, skill and diligence normally provided by a professional person in the performance of services of the type rendered hereunder. Seller agrees to perform services in a safe manner and in compliance with all customary safety practices. Seller agrees to comply with all present and future applicable federal and state labor and employment laws and other laws, including, but not limited to, health, safety and environmental laws, regulations and orders. WITHOUT LIMITING THE FOREGOING, IF ANY SERVICES WILL BE PERFORMED IN CALIFORNIA, SELLER EXPRESSLY ACKNOWLEDGES THAT (i) SELLER IS AWARE OF THE REQUIREMENTS OF CALIFORNIA LABOR CODE SECTION 2810 AND EXPRESSLY REPRESENTS THAT SELLER'S FEES UNDER THIS ORDER SUFFICE SO THAT SELLER CAN AND WILL COMPLY WITH ALL APPLICABLE LOCAL, STATE, AND FEDERAL LAWS OR REGULATIONS GOVERNING THE LABOR OR SERVICES TO BE PROVIDED AND (ii) INTUIT MAY AND SHALL RELY UPON SUCH REPRESENTATION. Seller covenants that if Seller applies for health coverage through the Health Insurance Marketplace, Seller will not represent at any time during the application process that Intuit is Seller’s common law employer. If Seller represents that Intuit is his or her common law employer during the application process, Seller agrees to save and hold Intuit harmless with regard to any penalties that are assessed against Intuit as a result of this representation. Seller further agrees to be bound by the terms and conditions of Intuit's Rules of Conduct for Onsite Service Providers as amended from time to time and hereby incorporated by this reference, the current version of which is available at https://www.intuit.com/company/strategic-sourcing/supplier-code-of-conduct/
Seller will maintain insurance policies to cover any public liability, bodily injury, property damage and automobile liability for any damage incurred in connection with Seller's performance of any work at Intuit or at any third-party premises. Seller shall maintain Commercial General Liability and Workers' Compensation Insurance and State Disability Insurance covering all employees performing the services under this Order with minimum limits of $1 million per claim and $2 million annual aggregate. Seller shall maintain all of the above insurance policies as primary to any insurance maintained by Intuit and shall name Intuit, its directors, officers, employees and agents as additional insureds on such policies.
Seller shall notify Intuit in writing in advance of Seller's desire to retain any subcontractors to support the performance of the services. Intuit reserves the right, in its sole discretion, to disapprove such retention. Seller shall also be liable for any subcontractor it hires to perform the services for Intuit, and covenants that such subcontractors shall, prior to performance of any services, agree in writing to be bound by the terms of this Order.
Seller acknowledges that during the performance of the services, it may be exposed to certain information concerning Intuit's business and technology and related information whether or not it is marked or designated by Intuit as “confidential or “proprietary” at the time of disclosure, which is confidential or proprietary to Intuit and is not generally known to the public ("Confidential Information"). Without limiting the foregoing, the technology and any information covered by Intuit's privacy policies (including without limitation customer data) shall be deemed to be Confidential Information of Intuit. Seller agrees that during and after the performance of services, it will not use any Confidential Information except in accordance with the provisions and for the specific purposes of this Order, it will restrict access to Confidential Information to its agents, employees or representatives who have a need to know such information, it will take all reasonable measures to maintain the confidentiality of all Confidential Information in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance, and will not disclose any Confidential Information to any third party without the prior written consent of Intuit.