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IBM standard purchase order terms and conditions

December 18, 2014, to current date

Agreement documents: This Purchase Order (PO), any attachments made as part of this PO, and any documents or clauses incorporated by reference into this PO are the sole and exclusive agreement of Buyer and Supplier for the products and services in this PO, and no other document, including the Supplier’s proposal, quotation or acknowledgment form, will be part of this PO, unless specifically agreed to in writing by Buyer. Terms contained in the Supplier's response to, or acknowledgment or acceptance of, this PO, if any, that are additional to, or different from, the terms set forth herein (which terms would constitute a counter-offer by Supplier) are specifically rejected by Buyer. Buyer's offer to purchase as provided in this PO may not be modified by Supplier counter-offers. Notwithstanding the foregoing, if this PO is deemed an acceptance by Buyer of a Supplier offer or counter-offer, then such acceptance is expressly made conditional on Supplier's assent to all of the terms of this PO, including those that are additional to, or different from, the terms of Supplier's offer or counter-offer. The terms and conditions of this PO are subject to change without notice.

Prices: If the PO does not include pricing, the price for the products or services provided hereunder will be Supplier's lowest prevailing market price for such products or services. Supplier is not entitled to reimbursement of expenses incurred in connection with fulfilling this PO, except as otherwise agreed in writing by Buyer.

Taxes: Supplier is responsible for and will pay all applicable taxes, charges, fees, levies, or other assessments imposed or collected by any governmental entity (or political subdivision thereof) worldwide on sales of products or services, or sales, use, transfer, goods, and services or value added tax or any other duties or fees related to any payment by Buyer to Supplier for products and/or services provided to Buyer under or pursuant to this PO. If Buyer provides a direct pay certificate, certification of an exemption from tax, or reduced rate of tax imposed by an applicable taxing authority, then Supplier agrees not to invoice, nor pay, any such tax unless and until the applicable taxing authority assesses such tax, at which time Supplier shall invoice and Buyer agrees to pay any such tax that is legally owed. Buyer shall withhold taxes as required under applicable law on payments made to Supplier hereunder and shall be required to remit to Supplier only the net proceeds thereof.

Terms of payment and acceptance: Unless otherwise mandated by local law, the terms of payment are net 60 days after receipt of Supplier's valid invoice or after receipt of the products or services, whichever is later. Payment will not be deemed acceptance of products or services, and such products or services will be subject to inspection, test, acceptance or rejection. At Buyer's option, Buyer may reject products or services that do not comply with Buyer's acceptance criteria for a refund, or require Supplier to repair or replace such products or re-perform such services without charge and in a timely manner. Buyer may return non-conforming products to Supplier at Supplier's expense.

Termination: This PO may be terminated by Buyer with or without cause. If Buyer terminates without cause, Buyer will pay Supplier for Supplier's actual and reasonable expenses for work that has been satisfactorily completed as of the date of termination, but in no event will such payment exceed the agreed upon prices.

Imports and exports: Supplier is the importer and exporter of record. Supplier will comply with all import and export laws and administrative requirements, including the payment of all associated duties, taxes and fees and all applicable laws, regulations, certifications and registrations associated with the import or export of Supplier’s products including but not limited to product safety, electromagnetic compatibility, telecommunications, product take-back/recycling and environmental requirements. Upon Buyer request, Supplier will promptly provide all information necessary to export and import products, including, as applicable, the Export Control Classification Numbers (ECCN) and subheadings or munitions list category number, certification and or test results relating to the products or services and any other and will notify Buyer in writing of any changes to the information provided by Supplier to export and import products. For products that will be imported by the Buyer, Supplier will provide promptly any requisite information, documentation, certification and/or test results for Buyer to comply with applicable import laws and administrative requirements.

Packages/transportation: Supplier will comply with: (i) all country of origin marking instructions and all Buyer instructions for exports to Buyer; (ii) all packaging and labeling requirements set out in this PO; and (iii) the transportation routing guidelines in this PO and pursuant to the Shipping transportation guidelines. Default minimum requirements for (i) and (ii) are found under Instructions for cross-border shipments to IBM Corporation.

Social and environmental management system: Supplier will comply with the Social and environmental management system supplier requirements.

Risk of loss; delivery: Title and risk of loss remain with Supplier until products purchased under this PO have been delivered to Buyer at the location specified in the PO and accepted by Buyer. For Supplier's delivery of products, time is of the essence. If Supplier fails to deliver on time, Buyer may purchase replacements elsewhere, and Supplier will be liable for actual and reasonable costs and damages Buyer incurs. Supplier will promptly notify Buyer if it is unable to comply with the delivery date specified in this PO.

Warranties: Supplier warrants that:

Intellectual property: Supplier grants Buyer all rights and licenses necessary for Buyer and its affiliates to use, transfer, pass-through, and sell the products and services and to exercise the rights granted under this PO.

Ownership of products: Except for products consisting of software (which is licensed as provided under Intellectual Property above), all work product developed by Supplier and provided to Buyer under this PO are and shall remain the personal property of Buyer.

Indemnification: Supplier agrees to defend, hold harmless, and indemnify Buyer and its affiliates from any claim (including without limitation costs, expenses and attorneys fees) arising from (a) claims that any product infringes any intellectual property rights, (b) the failure of Supplier to comply with its warranties and obligations under this PO or (c) a Security Incident. If a claim of infringement is made, Supplier will, at its own expense, exercise the first of the following remedies that is practicable: (i) obtain for Buyer the rights granted under this PO; (ii) modify the product so it is non-infringing and in compliance with this PO; (iii) replace the product with non-infringing ones that comply with this PO; or (iv) accept the return or cancellation of the infringing product and refund any amount paid.

Limitation of liability: To the extent permitted by local law, in no event will Buyer or its affiliates be liable for any lost revenues, lost profits, incidental, indirect, consequential, special or punitive damages. In no event shall Buyer’s liability to Supplier exceed the total amount of fees actually paid by Buyer to Supplier hereunder.

Assignment: Supplier will not assign its rights or subcontract its duties without Buyer's written consent. Any unauthorized assignment is void.

Exchange of information: All exchanges of information between the parties pursuant to this PO will be considered non-confidential. If the parties intend to exchange confidential information, such exchanges shall be made under a separate written confidentiality agreement. For any Personal Data relating to Supplier's personnel that Supplier provides to Buyer, Supplier will obtain the informed consent of such personnel to release the information to Buyer and to allow Buyer to use, disclose, and transmit such information on a worldwide basis among Buyer and its affiliates in connection with this PO.

Ethical dealings: Supplier will be familiar and will strictly comply with all laws and regulations on bribery, corruption, and prohibited business practices. Supplier and its affiliates have not and will not, for the purpose of influencing or inducing anyone to influence decisions in favor of Buyer or any of its affiliates, offer, promise, or make or agree to make, directly or indirectly, (a) any political contributions of any kind or any payment to or for the benefit of any public official, whether elected or appointed, (b) any payments for gifts, meals, travel, or other value for a government employee or his/her family members, or (c) any payments or gifts (of money or anything of value) to anyone. Buyer shall not reimburse Supplier for any such political contributions, payments, or gifts.

Audit rights: Upon Buyer's notice to Supplier and at no additional charge to Buyer, Supplier shall provide Buyer (including its auditors and any regulators) access at reasonable times (or in the case of regulators, at any time designated by such regulators), to any facility at which Supplier is providing services under this PO and to all systems, data, and recordings relating to such services for purposes of auditing integrity of Buyer and Buyer's customer data. Supplier shall also identify a focal point to support the audit and promptly respond to all reasonable requests for information from Buyer regarding the foregoing, including completing periodic compliance-related questionnaires and providing supporting documentation and other data.

Record keeping:Supplier will maintain (and subject to applicable law provide to Buyer upon request) relevant business, technical and accounting records to support Supplier's invoices and to demonstrate compliance with Supplier's performance of its regulatory compliance and security-related obligations under this PO, and proof of required permits and professional licenses, for a period of time as required by applicable local law, but not for less than six (6) years following completion or termination of this PO. All Accounting records will be maintained in accordance with generally accepted accounting principles.

Insurance: Supplier shall obtain and maintain all applicable and appropriate insurance, (including, without limitation, business, workers' compensation, auto, errors and omissions, professional and commercial general and liability insurance) in an amount consistent with Supplier's industry practice. Each policy shall name Buyer as a loss payee or additional insured, as appropriate.

Supplier's subcontractor obligations: Supplier shall enter into a written contract with each subcontractor it is authorized to retain under this PO, if any, with such contract committing each such subcontractor to comply with all of Supplier's obligations and responsibilities under this PO. By way of example but not limitation, those obligations and responsibilities include those contained in the Ethical Dealings and Record Keeping and Audit Rights provisions of this PO. In addition, in such written contract, Supplier shall identify Buyer as a direct and intended third-party beneficiary of the Record Keeping and Audit Rights provision, with the effect that Buyer shall have all of the same rights under that provision as Supplier has with subcontractor. Nothwithstanding the foregoing, Supplier's use of a subcontractor will not relieve Supplier of its obligations under this PO or its responsibilities for the subcontractor's performance.

Applicable laws: This PO is governed by the laws of the country where the Buyer is located, except: (i) in Australia, this PO will be governed by the laws of the State or Territory in which the transaction occurs; (ii) in the United Kingdom, this PO will be governed by the laws of England; (iii) in Albania, Armenia, Azerbaijan, Belarus, Bosnia-Herzegovina, Bulgaria, Former Yugoslav Republic of Macedonia, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Montenegro, Romania, Russia, Serbia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan, this PO will be governed by the laws of Austria; (iv) in Estonia, Latvia, and Lithuania, Finnish law will apply; (v) in Canada, the laws of the Province of Ontario govern this PO; and (vi) in the United States (including if any part of the transaction occurs within the United States), Puerto Rico, and People's Republic of China, the laws of the State of New York applicable to contracts executed in and performed entirely within that State govern this PO.

General: Any reproduction of this PO by reliable means will be considered an original of this PO. The United Nations Convention on Contracts for the International Sale of Goods does not apply. The parties expressly waive any right to a jury trial regarding disputes related to this PO. Unless otherwise provided by local law without the possibility of contractual waiver or limitation, any legal or other action related to this PO must be commenced no later than two (2) years from the date on which the cause of action arose.

No modification, amendment, supplement to, or waiver of this PO by Buyer shall be binding upon the parties unless made in writing duly signed by both parties and specifically referencing this PO. Buyer’s failure to exercise any right hereunder shall not operate as a waiver thereof.

Both shrinkwrap and clickwrap licenses accompanying any product consisting of software and online Terms of Use or Terms of Service relating to services provided online are null and void, and the terms and conditions of this PO prevail.

Supplier and supplier personnel: Any services performed by Supplier shall be performed as an independent contractor, and Supplier is solely liable for applicable payroll or income taxes of its personnel.

Supplier will:

General business activity restrictions:

(a) Supplier will ensure that Supplier personnel assigned to work on Buyer's or customer's premises will not:

(b) Supplier will, for Supplier personnel assigned to work on Buyer's or customer's premises:

Buyer's safety and security guidelines: Supplier will ensure that Supplier personnel assigned to work on Buyer's or customer's premises:

Asset control: For purposes of this Subsection, the term "Buyer Assets" means information, information assets, information systems, supplies or other property, including property owned by third parties (such as Buyer customers) that is accessed by Supplier personnel or provided to Supplier personnel by (or on behalf of) Buyer. Supplier personnel will:

Buyer may periodically audit use of Buyer's Assets and Supplier's data residing on Buyer Assets.

Supervision of Supplier's personnel:

(a) Supplier will:

(b) Supplier's supervisor(s) shall:

(c) Notwithstanding any other language or agreement to the contrary, Supplier agrees that Buyer has no responsibility to approve, and that Buyer will not approve, time sheets for any Supplier personnel. If Buyer should review, sign, and/or submit time sheets for Supplier personnel, whether manually or electronically, as part of Buyer's billing verification processes, the parties acknowledge and agree that such review, signature, and/or submission shall in no way constitute concurrence or approval of such time sheets, nor create any other commitment or obligation on the part of Buyer to Supplier or Supplier personnel.

Criminal background checks:

(a) To the extent permitted by local law, Supplier will:

(b) Once a criminal background check is conducted for a particular individual, such background check may be used by Supplier to satisfy the requirements of this Section titled "Criminal Background Checks" for three (3) years from the date of the background check. To the extent permitted by local law, Supplier shall conduct new background checks on individuals assigned to perform services under this PO every three (3) years.

(c) Nothing in this Subsection titled "Criminal Background Checks" limits Buyer's ability to remove Supplier personnel from an assignment at Buyer's discretion.

Supplier shall not use the name or trademarks of Buyer or its affiliates or refer to or identify Buyer or its affiliates in any marketing materials (including without limitation testimonials or customer listings) or press releases without the prior written consent of Buyer.

Additional provisions relating to U.S. Federal and public sector:

In accepting these terms on behalf of Supplier, you, or you on behalf of a Third Party Supplier/sub-tier, represent and warrant that you have full authority to bind Supplier to these terms.

Defense Priorities and Allocations System (DPAS) - 15 C.F.R. 700: In accordance with 15 C.F.R. Part 700, 13(d), Supplier must accept or reject a rated order and transmit its acceptance or rejection, in writing (via E-mail), within fifteen (15) working days after receipt of a DO rated order and within ten (10) working days after receipt of a DX rated order. If you reject this order, you must provide, in writing (via E-mail), your reasons for the rejection to buyer, in accordance with paragraphs (B) and (C) of the above-referenced C.F.R.

If an order is placed that contains the notice for emergency preparedness under 15 C.F.R. 700, 12(b), Supplier must accept or reject in writing (via E-mail) within the time period stated in such order.

If you have accepted a rated order and subsequently find that shipment or performance will be delayed, you must notify Buyer immediately, provide the reasons for the delay, and inform Buyer of a new shipment or performance date. If you provide such notification verbally, you must give written notice (via E-mail) within one working day of the verbal notification.

Compliance with laws unique to government contracts: For work performed under specific U.S. government procurement contracts the following provisions apply: 48 C.F.R. 52.222-26, Equal Opportunity (Apr. 1984); 48 C.F.R. 52.222-35, Affirmative Action for Special Disabled and Vietnam ERA Veterans (Apr. 1984) (If for $10,000 or more); 48 C.F.R. 52.222-36, Affirmative Actions for Handicapped Workers (Apr. 1984) (if in excess of $2,500); and 48 C.F.R. 52.222-37, Employment Reports on Special Disabled Veterans of the Vietnam Era (Jan. 1988) (If $10,000 or more). These provisions have the same force and effect as if they were stated in their full text. Supplier agrees that it and its employees who work under this PO will comply, and assist Buyer in complying with, the laws unique to performing on government contracts, including without limitation, the following statutes and regulations: 31 U.S.C. 1352, relating to the limitation on the use of appropriated funds to influence certain Federal contracts; 41 U.S.C. 51-58, Anti-Kickback Act of 1986; 41 U.S.C. 423, Procurement Integrity Act; 48 C.F.R. Subpart 9.5, relating to conflicts of interest; and 29 CFR Part 471, including the posting of the employee notice prescribed at 29 CFR Part 471, Appendix A to Subpart A. Supplier also agrees not to offer or give gifts on behalf of Buyer to third parties, including without limitation, U.S. government employees and officials.

Compliance with equal opportunity clauses: This contractor and subcontractor shall abide by the requirements of 41 CFR 60-300.5(a). This regulation prohibits discrimination against qualified protected veterans, and requires affirmative action by covered prime contractors and sub-contractors to employ and advance in employment qualified protected veterans. 41 CFR 300.5(d)

This contractor and subcontractor shall abide by the requirements of 41 CFR 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities. 60-741.5(d)

Notification of debarment/suspension: Pursuant to F.A.R. 52.209-6, Supplier certifies through acceptance of this P.O. in writing that as of the date of issuance of this P.O., neither Supplier, nor any of the Supplier's principals, is debarred, suspended, or proposed for debarment by the Federal Government or any State Government. Further, Supplier shall provide immediate written notice (via E-mail) to Buyer in the event that during the performance of this P.O., Supplier or any of Supplier's principals is debarred, suspended, or proposed for debarment by the Federal Government or any State Government. If Supplier or any of Supplier's principals are currently debarred, suspended, or proposed for Debarment, do not accept this P.O., and contact buyer immediately. Notwithstanding anything to the contrary contained in this P.O., if, for any reason, Supplier or any of Supplier's principals have accepted this P.O. and are currently debarred, suspended or proposed for debarment, this P.O. shall not be effective, and Buyer shall not have any liability to Supplier in connection with this P.O.

Conflicts of interest: In the performance of this PO, it is Supplier’s responsibility to avoid: (1) any actual or apparent conflict between Supplier’s duties or obligations to other parties, including the Federal Government, and such duties and obligations assumed under this PO and (2) disclosure of information which would, or would appear to, violate such duties and obligations to third parties. In the performance of this PO, Supplier shall not make or participate in any marketing calls or contacts with the Federal Government or others which might create the possibility or appearance of a conflict of interest or an actual conflict of interest. Supplier also agrees that, if subsequent to the issuance of this PO, Supplier finds that a conflict, or what may appear to be a conflict, develops because of a relationship created or intended to be created between Supplier or Supplier’s agents, or employees and any third party or with an agency or other representative of the Federal Government or any other Government, Supplier shall immediately notify Buyer, and Buyer shall have the right, at its sole discretion, to terminate this PO on notice. Upon exercise of such right of termination, Buyer’s only obligation to Supplier shall be to reimburse Supplier for proper services satisfactorily completed as of the date of termination.

Additional warranties: Supplier warrants that:

For further information, please contact Giovanni Frusteri.

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