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Terms and Conditions of Purchase Order

  1. COMPLETE AGREEMENT AND ACCEPTANCE. These terms and conditions (“Terms”), and all statements and supplements made on the first page(s) of this Purchase Order by Mutual of Omaha Insurance Company, including any of its subsidiaries and affiliates (“Affiliates”) using this Purchase Order (“Buyer”), constitute the complete agreement between Buyer and Vendor concerning this purchase of goods and/or services (“Goods”). Any prior negotiations between Buyer and Vendor on terms or conditions of sale set forth in Vendor’s quotation or order or sale acknowledgement, or any conflicting or inconsistent provisions incorporated by Vendor on the first page(s) of this Purchase Order or any other document issued by Vendor in connection with this Purchase Order, shall be of no force and effect concerning this purchase unless specifically incorporated into this Purchase Order by Buyer, irrespective of whether they would materially alter this order. Conflicting or inconsistent provisions incorporated by Buyer on the first page(s) of the Purchase Order and these Terms, shall be interpreted to reconcile one with the other. In cases where such reconciliation is commercially unreasonable, the terms set forth on the first page(s) of the Purchase Order shall govern and control. This Purchase Order may be processed by Mutual of Omaha Insurance Company on behalf of itself, or by an Affiliate independently. In circumstances where Mutual of Omaha Insurance Company is executing this Purchase Order, Buyer shall mean Mutual of Omaha Insurance Company. In circumstances where an Affiliate is executing this Purchase Order, Buyer shall refer to that Affiliate. In no event where an Affiliate is the Buyer on this Purchase Order, shall Mutual of Omaha Insurance Company be liable for this Purchase Order. In the event there are conflicting terms and conditions between this Purchase Order and an additional valid agreement fully executed by both parties with respect to purchase of the same Goods (the “Other Agreement”), the terms of the Other Agreement will govern.

  2. PRICES/DISCOUNTS. The price of Goods is the price stated in this Purchase Order (“Price”). When the Buyer is entitled to an early payment discount, the period of computation will commence on the date of acceptance, or receipt of a correctly completed invoice, whichever is later. Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation, costs to the Ship To address on the first page(s) of this Purchase Order (“Delivery Location”), insurance, customs duties and fees and applicable taxes including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.

  3. SETOFF. Without prejudice to any other right or remedy Buyer may have, Buyer reserves the right, in its sole discretion, to withhold any amount payable to Vendor under this Purchase Order, for the purposes of set-off for any moneys due or to become due to Buyer from Vendor for any claim or charge Buyer may have against Vendor.

  4. INVOICES/TAXES. Unless otherwise specified by Buyer on the first page(s) of this Purchase Order, Vendor shall issue an invoice to Buyer for the Goods upon or any time after delivery of the Goods. The invoice shall contain the Purchase Order Number and, together with a copy of the freight bill and the signed delivery receipt, shall be sent to the Bill To address on the first page(s) of this Purchase Order. Vendor will collect and pay all applicable federal, state and city sales and use taxes on behalf of Buyer. Any other taxes shall be the responsibility of Vendor. All undisputed invoices will be paid by Buyer within sixty (60) days of receipt of the invoice. If a dispute arises with regard to the amount of the invoice, Buyer shall notify Vendor to resolve the disputed amounts. Vendor shall continue performing its obligations under this Purchase Order notwithstanding any such dispute.

  5. DELIVERY. Unless otherwise specified by Buyer on the first page(s) of this Purchase Order, Vendor shall deliver during normal business hours, all Goods in the quantities and on the Due Date specified in this Purchase Order, to the Delivery Location. Timely delivery of the Goods is of the essence. In the event Vendor cannot meet the Due Date(s), Buyer may terminate this Purchase Order immediately, without liability, and Vendor shall indemnify Buyer against any losses, claims, damages and reasonable costs and expenses directly attributable to Vendor’s failure to deliver the Goods on the Due Date(s).

  6. SHIPPING TERMS/PACKING. Unless otherwise specified by Buyer on the first page(s) of this Purchase Order, Vendor shall contract, at Buyer’s expense, the most effective method of transportation for the Goods to be delivered to the Delivery Location, and Vendor shall bear all costs of insurance and risk of loss or damage to the Goods until the Goods are delivered to the Delivery Location. A packing list should be attached to the OUTSIDE of the first carton or package shipped. The Purchase Order Number must appear on all packing lists, shipping notices and instructions, and other written documents issued in connection with this Purchase Order. All Goods should be packed for shipment in a manner sufficient to ensure that the Goods are delivered in undamaged condition.

  7. INSPECTION. All Goods are subject to final inspection and approval at the Delivery Location. Such inspection shall be made within a reasonable time after delivery, irrespective of the date of payment. Buyer may return rejected items at Vendor’s risk and expense. Vendor shall not replace Goods returned as defective unless so directed by Buyer in writing. Buyer shall receive a refund for any rejected or returned Goods within ten (10) days of rejection or return. If applicable, Vendor agrees to permit the Buyer’s inspectors or its assigns to have access to Vendor’s plant or warehouse at reasonable times and upon reasonable written notice for the purpose of inspecting the Goods set forth in this Purchase Order, or work in process for production or storage of such Goods.

  8. DEVIATION IN QUANTITY OR QUALITY. Buyer does not subscribe to the trade practice of 10% overruns, and no overruns or underruns will be allowed without Buyer’s prior written approval. Overruns, when permitted, must be shown as a separate line item on Vendor’s invoice. Unauthorized overruns will be destroyed or returned at Vendor’s option and expense. Special brands, when named, are to indicate the standard of quality, performance, or use expected. Acceptance of Vendor’s alternate item(s) will be conditioned on Buyer’s inspection and prior written approval. Where NO SUBSTITUTIONS are indicated, no substitution will be allowed, and materials will be returned at Vendor’s risk and expense.

  9. TITLE. Title to the Goods passes to the Buyer on the date of acceptance of the Goods by Buyer. Vendor hereby agrees and acknowledges that any Goods created by Vendor specifically for Buyer, whether such Goods utilized Information (as defined below) or not, shall be governed by the provisions governing a “work made for hire” as defined in Section 101 of the Copyright Act, 17 U.S.C.A. § 101 et seq. or any successor thereto, and/or the Terms of this Purchase Order, and Buyer shall be considered the author and/or the owner of any and all rights in and to the Goods and any and all derivative works, products, designs and other results of the Goods created under this Purchase Order. To the extent that the creation of the Goods is not governed by the “work made for hire” provisions of the Copyright Act, Vendor hereby transfers and assigns to Buyer, all of Vendor’s worldwide rights, title and interest in and to the Goods and to any copyright which it may own with respect to the Goods. Vendor further agrees and acknowledges that Buyer’s ownership rights to the Goods include but are not limited to the right to duplicate, reproduce, sell, alter, edit and copyright the Goods, and Vendor shall have no rights whatsoever, including but not limited to, any so-called “moral rights” or the equivalent thereof, in the Goods. During and after the delivery of the Goods under this Purchase Order, Vendor shall cause its employees to, from time to time as and when requested by Buyer, without further consideration to Vendor or Vendor’s employees, (a) execute all papers and documents and perform all other acts necessary or appropriate, in the discretion of Buyer, to evidence or further document Buyer’s ownership of the Goods and the above-mentioned proprietary rights therein; and (b) assist Buyer in obtaining, registering, maintaining and defending for Buyer’s benefit (which defense shall be at Buyer’s expense except to the extent such defense is made in connection with any claim or other event covered by Vendor’s indemnity obligation contained in this Purchase Order), copyrights, trade secret rights and other proprietary rights in the Goods in any and all countries as Buyer may determine in its sole discretion.

  10. WARRANTIES. Vendor hereby represents and warrants to Buyer, that the Goods conform to specifications, drawings, designs, samples and other requirements specified by Buyer herein, and for a period of twelve (12) months from the Delivery Date, all Goods will (a) be free from any defects in workmanship, material and design; (b) be fit for their intended purposes and operate as intended; (c) be merchantable; (d) be free and clear of all liens, security interests or other encumbrances; and (e) not infringe or misappropriate any third party’s patent or other intellectual property rights. This Purchase Order does not exclude, or in any way limit, other warranties provided for by Vendor, a manufacturer or by law. Vendor shall be liable for all damages to Buyer and its customers incurred as a result of any defect or breach of warranty in any Goods. Vendor shall comply with all applicable federal, state and local laws, rules and regulations and shall maintain, at its sole cost, all licenses or permits required by law.

  11. INDEMNIFICATION. Vendor shall indemnify, defend and hold harmless Buyer, its affiliates, officers, directors, employees, agents, representatives, contractors and/or subcontractors (collectively, the “Indemnified Party”) from and against all claims and actions, and all expenses incidental to such claims or actions, based upon or arising out of or in connection with the Goods purchased from Vendor or any actual or alleged damage to property or injuries to persons or other tortious acts caused or contributed to by Vendor, or anyone acting under its direction or control or on its behalf, or breaches of the obligations, representations or warranties in this Purchase Order, provided Vendor’s aforesaid indemnity and hold harmless agreement shall not be applicable to any liability based upon the sole negligence of the Indemnified Party.

  12. CONFIDENTIALITY. All non-public, confidential or proprietary information of the Buyer, including, but not limited to, ideas, information, photographs, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates (“Information”) shall remain the Buyer’s property. Information disclosed by Buyer to Vendor, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential”, is confidential, solely for the use of performing this Purchase Order and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Vendor shall promptly return all Information received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to Information that is (a) in the public domain; (b) known to the Vendor at the time of disclosure; or (c) rightfully obtained by the Vendor on a non-confidential basis from a third party without an obligation to keep the Information confidential.

  13. INSURANCE. Unless otherwise specified by Buyer on the first page(s) of this Purchase Order, Vendor shall, during the term of this Purchase Order, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to commercial general liability coverage (including product liability) of at least $1 million per occurrence and $2 million aggregate, worker’s compensation liability insurance equal to or in excess of limits of applicable worker’s compensation laws and automobile liability with a minimum $1 million limit. Upon request, Vendor will deliver evidence of such coverage to Buyer, in the form of a certificate of insurance. Vendor will immediately notify Buyer in writing of any termination, cancellation or reduction of such coverage, or any failure to renew such coverage. If this Purchase Order ends, and any of Vendor’s coverage is on a claims-made basis, Vendor will continue such coverage with a non-advancing retroactive date or will purchase tail coverage for all wrongful acts or omissions alleged to have occurred during the term of this Purchase Order. Vendor hereby waives any claims for loss sustained by it and caused by or attributed to Buyer (or allegedly caused by or attributed to Buyer) to the extent that the loss is paid by such coverage. Except where prohibited by law, Vendor shall require its insurer to waive all rights of subrogation against Buyer’s insurers and the Indemnified Party.

  14. TERMINATION. Buyer may terminate this Purchase Order, in whole or in part, at any time, with or without cause, for undelivered Goods on ten (10) days’ prior written notice to Vendor. In addition to any remedies that may be provided under these Terms, Buyer may terminate this Purchase Order with immediate effect upon written notice to the Vendor, either before or after the acceptance of the Goods, if Vendor has not performed or complied with these Terms, in whole or in part. If Vendor becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then Buyer may terminate this Purchase Order upon written notice to Vendor. If Buyer terminates the Purchase Order for any reason, Vendor’s sole and exclusive remedy is payment for the Goods received and accepted by Buyer prior to termination.

  15. FORCE MAJEURE. Neither party shall be liable to the other for any delay or failure in performing its obligations under this Purchase Order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable. “Force Majeure Events” include, but are not limited to, acts of God or the public enemy, government restrictions, fires, floods, earthquakes, explosions, epidemic, war, invasion, hostilities, terrorist acts, riots, embargoes or industrial disturbances. Vendor’s economic hardship or changes in market conditions are not considered Force Majeure Events. Vendor shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under the Purchase Order. If a Force Majeure Event prevents Vendor from carrying out its obligations under the Purchase Order for a continuous period of more than thirty (30) days, Buyer may terminate this Purchase Order immediately without liability, and is entitled to receive a refund of any amounts paid in advance.

  16. ASSIGNMENT/SUBCONTRACT. Vendor shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Purchase Order without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Vendor of any of its obligations hereunder. Buyer may, at any time, assign any right under this Purchase Order to an Affiliate without the consent of Vendor.

  17. EQUAL EMPLOYMENT OPPORTUNITY COMPLIANCE. Vendor, who may be a contractor or subcontractor, as those terms are defined in the laws set forth below, acknowledges and agrees that it complies with all laws relating to equal opportunities in employment including: 41 CFR 60-1.4(a), 41 CFR 60-300.5(a), 41 CFR 60-741.5(a) and 29 CFR 471, Appendix A to Subpart A. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.

  18. TRADEMARKS, TRADE NAMES, ETC. Except as specifically provided in this Purchase Order, Vendor shall not use or reproduce, by any means, any logo, trademark, service mark, copyrighted material or name of Buyer, in any advertising, social media, publicity releases, customer lists or otherwise, without the prior written consent of Buyer.

  19. GENERAL. This Purchase Order does not confer any authority on Vendor to enter into any commitment on Buyer’s behalf. Any such commitment shall be entered into only with the prior and specific written consent of Buyer. This Purchase Order shall be governed by and construed in accordance with the laws of the State of Nebraska without regard to the principles of conflicts of laws of Nebraska or any other state. Vendor agrees to submit to the personal jurisdiction of the courts of the State of Nebraska for adjudication of any disputes arising hereunder. Except to the extent that this Purchase Order is inconsistent therewith, this Purchase Order shall be governed by the Nebraska Uniform Commercial Code. Any provision of this Purchase Order which shall prove to be invalid, void or illegal shall in no way affect, impair or invalidate any other provision hereof and such other provisions shall remain in full force and effect. No amendment, modification or revision to the Purchase Order shall be effective unless made in writing and signed by an authorized representative of Buyer and Vendor. No waiver by any party of any of the provisions of the Purchase Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Such waiver shall not constitute a waiver of any other provisions of the Purchase Order or any subsequent breach of the same provision so waived.

  20. SURVIVAL. The rights and obligations of the parties in this Purchase Order that would by their nature or context be intended to survive the expiration or termination of this Purchase Order, shall so survive.

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