Terms and Conditions of Supply

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Terms and Conditions of Supply

Purchase orders issued by HomeServe USA Corp. and its affiliates (“HomeServe”) to third parties for the supply of goods and services (each, a "Company") are subject to the following terms and conditions.

 

1. Warranties

The Company must warrant that:

1.1 All goods supplied to HomeServe shall be free of defects, shall be of satisfactory quality and shall conform to any standard agreed by the parties, or in the absence of that to any stated requirements of HomeServe.  Duration of warranty to be based on specific goods supplied.  Repairs or replacements shall be at no cost to HomeServe during warranty.  Equipment and tangible property supplied must be new and not refurbished.

1.2 All services supplied to HomeServe shall be performed to the highest professional standard in the applicable industry and shall conform to any standard agreed by the parties, or in the absence of that to any standard specified by HomeServe.  Only properly trained and experienced employees and contractors can provide services and are subject to HomeServe prior approval.

1.3 Company shall comply with all applicable laws and regulations and must have (and all employees and contractors must have) any licenses necessary in order to supply the goods or provide the services.

1.4 Any goods and/or services supplied to HomeServe shall not infringe the copyright, patent, trade mark, trade name or any other intellectual property right of any third party.

 

2. Delivery

2.1 The goods shall be delivered, to HomeServe’s designated place of business as stated on the purchase order or to such other place of delivery as is agreed in writing. Freight and insurance shall be paid by Company unless otherwise agreed by the parties.  Company shall unload the goods at its own risk as directed by HomeServe.

2.2 Where the parties agree that goods or services will be delivered at a certain time or date, Company shall deliver at such time or date.  If Company fails to deliver at such time or date, HomeServe may reject the goods and services which have not been supplied as agreed.  In addition, HomeServe may choose to cancel any other orders previously made with Company and shall have all of its remedies for breach.

2.3 HomeServe shall be given priority treatment in cases of partial shipments of goods or provision of services.

 

3. Title/Risk

3.1 Unless otherwise agreed in writing between the parties, risk of damage or loss to the goods shall pass to HomeServe upon delivery.

3.2 Legal title to the goods or services’ deliverables shall pass to HomeServe only when Company has received full payment of all monies properly due from HomeServe to Company in respect of the particular goods or services’ deliverables.

 

4. Minimum Orders

4.1 HomeServe will not be obligated to any minimum purchase requirements unless expressly agreed in writing.

 

5. Ownership of Intellectual Property in Goods and Services

5.1 Commissioned designs/technology/services:

All intellectual property rights arising from or in connection with the creation of goods or services commissioned by and produced specifically for HomeServe shall be owned by HomeServe, unless otherwise agreed in writing.  Company assigns all such rights to HomeServe with full title guarantee and by way of future assignment where appropriate. This includes all deliverables in connection with any services and goods.

5.2 Pre-existing designs/technology/services:

All intellectual property in goods or services that have already been developed by Company and are then offered to HomeServe (“Pre-existing Rights”) shall be owned by Company, unless otherwise agreed in writing. Company must grant to HomeServe a license of such Pre-existing Rights to use the goods and/or services in the manner agreed by the parties. Absent agreement, the license will be royalty free, fully paid, perpetual and worldwide and subject to assignment by HomeServe in connection with any sale of its business.

5.3 All HomeServe intellectual property is owned exclusively by HomeServe. Any changes to licensed intellectual property under Section 5.2 made by HomeServe are owned by HomeServe.

 

6. Payment

6.1 Company will invoice HomeServe only for the amount that the parties have agreed and without any additional charges. All invoices shall reference the HomeServe purchase order. Company expenses will not be reimbursed unless agreed to in advance by HomeServe.

6.2 All undisputed, properly tendered invoices are payable within 60 days of the end of the month in which HomeServe receives the invoice.

 

7. Cancellation

7.1 HomeServe may cancel a purchase order without liability for any charges if the goods which are the subject of that purchase order have not yet been shipped by the time HomeServe provides notice of cancellation to the Company.

7.2 HomeServe may cancel a purchase order for the provision of any services without liability for any charges where those services have not yet been performed. In the event HomeServe desires to cancel a purchase order for services and the Company has delivered some services, HomeServe shall only be responsible to pay for services that have been received and accepted.

7.3 Company cannot cancel any purchase order other than due to a HomeServe breach that remains uncured after 30 days.

 

8. Confidentiality and Data Protection

8.1 All confidential information given or made available to either party or their contractors or employees by the other shall remain the property of the party giving that information. The parties agree not to use such information for any purpose other than as agreed by the party disclosing the information, or divulge such information to any third party.

8.2 Confidential Information includes information about HomeServe’s employees, customers and potential customers, which may include names, addresses, email addresses, and phone numbers as well as other personally identifiable information (“HomeServe Data”). In the event Company receives HomeServe Data, Company shall comply with federal regulations, state and local data privacy laws with respect to the handling of HomeServe Data, including but not limited to limiting access to the use of HomeServe Data and providing technical and organizational safeguards when handling, processing, transmitting and storing HomeServe Data (e.g. encrypt the HomeServe Data at all access points).  Without the prior written consent of HomeServe, Company shall not disclose or use the HomeServe Data except to the extent necessary to perform services hereunder (which does not extend to third parties and subcontractors except as may be specifically authorized by HomeServe).   Company agrees that it will act only on the instructions of HomeServe in relation to the processing and storage of such data.  Additionally, Company shall notify HomeServe immediately and provide HomeServe remediation assistance in the event of any unauthorized disclosure of the HomeServe Data.  If requested by HomeServe, Company shall obtain appropriate insurance covering the above matters.

8.3. Confidential information may not be copied by the receiving party without the consent of the disclosing party.  Upon the completion or termination of the parties relationship, or at any time upon HomeServe’s written request, Company shall immediately (i) return to HomeServe all items of Confidential Information (including all copies thereof); and (ii) if allowed by law and regulation, destroy any notes or personal memoranda which include or make reference to such Confidential Information.

8.4 This restriction shall not apply to information which becomes public through no wrongful act of the party receiving the information, which becomes rightfully known to the party receiving the information without restriction from a source other than the party giving the information, or to the extent such information is obliged to be disclosed by law or any competent regulatory body.

 

9. Other

9.1 The provisions of these terms and conditions of supply shall be governed by and construed in accordance with the laws of the State of New York, but without recourse to New York’s conflict of law provisions that would otherwise require the application of the law of any other jurisdiction.  The Parties hereby agree and consent to the exclusive jurisdiction and venue of the state and/or federal courts situated in the Southern District of New York, in any action arising out of or relating to these Terms and Conditions, and hereby submit to the personal jurisdiction of such courts. The parties will make good faith efforts to resolve all disputes within 30 days of the occurrence of a dispute hereunder through mediation, arbitration or other similar means.  In the event such dispute is not resolved after such 30 days, either party may commence proceedings as provided above.

9.2 Neither party is liable to the other for consequential or incidental damages or lost profits on customary terms.

9.3 HomeServe’s liability for monetary damages shall be limited to the amount of funds owed by HomeServe under the purchase order unless otherwise agreed.

9.4 Company shall be liable for and shall indemnify and hold HomeServe, its subsidiaries and/or affiliated companies and the directors, officers, employees, agents and customers of each of them, harmless against any liability, loss, damage, judgment, cost or expense (including attorney’s fees) in connection with or arising out of the fault, negligence, unlawful act or willful misconduct of Company, its subcontractors, employees or agents, including but not limited to, any failure to comply with the provisions of Section 8 of these terms and conditions.

9.5 Each Party agrees to comply with all federal, state and local laws, regulations, rules, directives or orders pertaining to anti-bribery and anti-kickbacks. Each party agrees that all payments, fees, expenses, other consideration, and anything of value exchanged between HomeServe and Company (including any employees, directors or officers of either thereof) are described in these terms and conditions. Other than as provided for herein, there are no payments, fees, expenses, other consideration, or anything of value being paid, received, or exchanged by the Parties, including but not limited to, between themselves, their affiliates, directors, officers, employees, agents or representatives. Either Party’s offer, promise, demand, or request for payments, fees, expenses or other consideration, or anything of value, whether oral or written, which is not provided for in or is different from the method of payment as provided herein, a written amendment or other document signed by both Parties, shall have no legal effect and shall not be enforceable.

9.6 Company shall adhere to any and all applicable HomeServe policies, procedures and guidelines which have been provided by HomeServe to Company from time to time. Company shall also adhere to HomeServe's Code of Business Conduct, which is available at https://www.homeserve.com/sc/cobc.

9.7 The Company agrees to the insurance requirements listed below and agrees to provide a certificate of insurance evidencing such coverage prior to the start of work or provision of goods/services.

Company shall, at its own cost and expense, procure and maintain for itself and its employees all insurance coverage as required by federal or state law, including workers' compensation insurance in the relevant state jurisdiction; employer’s liability insurance with limits of $1,000,000 per accident, per employee disease and policy aggregate; commercial general liability insurance on an occurrence basis via ISO CG 00 01 or its equivalent including contractual liability with a per occurrence limit for bodily injury or property damage of at least $2,000,000 per occurrence, $4,000,000 general aggregate, and $4,000,000 products-completed operations aggregate; automobile liability coverage via ISO CA 00 01 with a combined single limit of at least $1,000,000 per accident; professional liability (errors and omissions) insurance with a limit of $1,000,000 per occurrence; and an umbrella excess liability policy with a per occurrence limit of at least $3,000,000 per occurrence and $3,000,000 aggregate over its primary insurance.  All of Company’s required policies shall include a waiver of subrogation in favor of HomeServe. All required policies except workers’ compensation shall name HomeServe USA Corp., 601 Merritt 7, Norwalk, CT 06851, as an additional insured, including both ongoing operations via CG 2010 or its equivalent and completed operations via CG 2037 or its equivalent for commercial general liability. Umbrella/excess liability insurance shall follow form underlying insurance terms. Completed operations coverage shall be maintained for a period of no less than five (5) years following completion of all of Company’s work under this purchase order. All policies are to be written by insurance companies with an AM Best rating of A- VII or better.  With respect to any claims that may arise from the services contemplated under this purchase order, Company’s insurance policies shall be considered primary and noncontributory with regard to any policies maintained by HomeServe.  Within five (5) days of the purchase order issuance and in no event later than the start of work or first provision of goods/services, Company shall furnish a certificate of insurance evidencing such coverage, including additional insured status on both ongoing and completed operations, to HomeServe’s project manager.  Failure to provide such evidence of coverage shall be cause for the immediate cancellation of the purchase order; HomeServe may also withhold funds due to the Company until such certificates have been provided.  Company’s insurance policies will include a provision under which HomeServe receives thirty (30) days’ notice prior to coverage cancellation by either Company or its insurer. In the event that any service under this purchase order is to be rendered by person(s) other than Company’s employees, Company shall cause all such parties to maintain and supply evidence of insurance subject to the same terms and conditions as set forth above applicable to Company prior to commencement of service by such person(s).

     

ADDENDUM TO PURCHASE ORDER TERMS AND CONDITIONS

ONLY APPLICABLE IF PURCHASE ORDER STATES, “PROJECT ASSOCIATED PURCHASE ORDER SUBJECT TO CONNECTICUT STATE REQUIREMENTS”

For the purposes of this addendum to the purchase order terms and conditions, capitalized terms used herein without definition have the meanings assigned to them in the purchase order and the following terms are defined as follows:

(i) “Commission” means the Connecticut State Commission on Human Rights and Opportunities;

(ii) “Contract” and “contract” means the purchase order and any extension or modification of it;

(iii) “Contractor” and “contractor” include the Supplier and any successors or assigns of the Supplier;

(iv) “Gender identity or expression” means a person's gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person's physiology or assigned sex at birth, which gender-related identity can be shown by providing evidence including, but not limited to, medical history, care or treatment of the gender-related identity, consistent and uniform assertion of the gender-related identity or any other evidence that the gender-related identity is sincerely held, part of a person's core identity or not being asserted for an improper purpose.

(v) “Good faith” means that degree of diligence which a reasonable person would exercise in the performance of legal duties and obligations;

(vi) “Good faith efforts” shall include, but not be limited to, those reasonable initial efforts necessary to comply with statutory or regulatory requirements and additional or substituted efforts when it is determined that such initial efforts will not be sufficient to comply with such requirements;

(vii) “Marital status” means being single, married as recognized by the State of Connecticut, widowed, separated or divorced;

(viii) “Mental disability” means one or more mental disorders, as defined in the most recent edition of the American Psychiatric Association's “Diagnostic and Statistical Manual of Mental Disorders”, or a record of or regarding a person as having one or more such disorders;

(ix) “Minority business enterprise” means any small contractor or supplier of materials fifty-one percent or more of the capital stock, if any, or assets of which is owned by a person or persons:  (1) who are active in the daily affairs of the enterprise, (2) who have the power to direct the management and policies of the enterprise, and (3) who are members of a minority, as such term is defined in subsection (a) of Connecticut General Statutes § 32-9n; and

(x) “Public works contract” means any agreement between any individual, firm or corporation and the State of Connecticut or any political subdivision of the State of Connecticut other than a municipality for construction, rehabilitation, conversion, extension, demolition or repair of a public building, highway or other changes or improvements in real property, or which is financed in whole or in part by the State of Connecticut, including, but not limited to, matching expenditures, grants, loans, insurance or guarantees.

(xi) “Project” refers to the HomeServe USA Expansion Project.

A. (a) The contractor agrees and warrants that in the performance of the Contract such contractor will not discriminate or permit discrimination against any person or group of persons on the grounds of race, color, religious creed, age, marital status, national origin, ancestry, sex, gender identity or expression, mental retardation, mental disability or physical disability, including, but not limited to, blindness, unless it is shown by such contractor that such disability prevents performance of the work involved, in any manner prohibited by the laws of the United States or of the State of Connecticut; and the contractor further agrees to take affirmative action to insure that applicants with job-related qualifications are employed and that employees are treated when employed without regard to their race, color, religious creed, age, marital status, national origin, ancestry, sex, gender identity or expression, mental retardation, mental disability or physical disability, including, but not limited to, blindness, unless it is shown by the contractor that such disability prevents performance of the work involved; (b) the contractor agrees, in all solicitations or advertisements for employees placed by or on behalf of the contractor, to state that it is an “affirmative action‑equal opportunity employer” in accordance with regulations adopted by the Commission; (c) the contractor agrees to provide each labor union or representative of workers with which the contractor has a collective bargaining agreement or other contract or understanding  and each  vendor with which the contractor has a contract or understanding with respect to the Project, a notice to be provided by the Commission, advising the labor union or workers’ representative of the contractor's commitments under this section and to post copies of the notice in conspicuous places available to employees and applicants for employment; (d) the contractor agrees to comply with each provision of this Section and Connecticut General Statutes §§ 46a-68e and 46a-68f and with each regulation or relevant order issued by said Commission pursuant to Connecticut General Statutes §§ 46a-56, 46a-68e and 46a-68f; and (e) the contractor agrees to provide the Commission on Human Rights and Opportunities with such information requested by the Commission, and permit access to pertinent books, records and accounts, concerning the employment practices and procedures of the contractor as relate to the provisions of this Section and Connecticut General Statutes § 46a-56.. 

B. (a) The contractor agrees and warrants that in the performance of the Contract such contractor will not discriminate or permit discrimination against any person or group of persons on the grounds of sexual orientation, in any manner prohibited by the laws of the United States or the State of Connecticut, and that employees are treated when employed without regard to their sexual orientation; (b) the contractor agrees to provide each labor union or representative of workers with which such contractor has a collective bargaining agreement or other contract or understanding  and each  vendor with which such contractor has a contract or understanding with respect to the Project, a notice to be provided by the Commission advising the labor union or workers’ representative of the contractor’s commitments under this section, and to post copies of the notice in conspicuous places available to employees and applicants for employment; (c) the contractor agrees to comply with each provision of this section and with each regulation or relevant order issued by said Commission pursuant to Connecticut General Statutes § 46a-56; and (d) the contractor agrees to provide the Commission with such information requested by the Commission, and permit access to pertinent books, records and accounts, concerning the employment practices and procedures of the contractor which relate to the provisions of this Section and Connecticut General Statutes § 46a-56.

C. Pursuant to this Addendum clauses A.(c) and B.(b), HomeServe is hereby providing the Commission’s notices to contractor by way of the following links:

D. In compliance with Connecticut Executive Order Seventeen (17), contractor shall list all employment openings with the Connecticut State Employment Service.

E. The contractor acknowledges and agrees that the reference to any Connecticut State or other statute, rule or regulation herein is a reference to that statute, rule or regulation as the same may be amended from time to time.

F. The contractor acknowledges and agrees that HomeServe may enforce the provisions contained in this Addendum, including sanctions for noncompliance in accordance with Connecticut General Statutes §46a-56 and that the State of Connecticut, may at any time, step in and enforce those provisions.