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Terms of service
Smarthabit TERMS AND CONDITIONS OF PURCHASE
These Smarthabit Terms and Conditions of Purchase (the “Terms”) govern the rights, remedies, and obligations of Smarthabit, Inc. or an entity controlled by Smarthabit, Inc. (collectively, “Smarthabit” ) and a supplier (the “Supplier”) of items and materials, including products, hardware, software, furniture, equipment, and merchandise (“Goods”) and services (“Services”) under purchase orders issued by Smarthabit and agreements, engagement letters, statements of work, or other documents executed by Smarthabit and Supplier that refer to or incorporate these Terms (each a “Purchasing Document”).
1. Online Documents. The following documents, available at https://www.smarthabit.com/, are incorporated into these Terms as of the date of the Purchasing Document and can be updated upon written notice (including email) to Supplier: (i) the Smarthabit Supplier Code of Conduct (“Code of Conduct”), and, if applicable (ii) the Smarthabit Data Protection Agreement (“DPA”).
2. Quality and Security. Supplier will perform all of its obligations to Smarthabit (i) with due care, skill and diligence, (ii) in a professional and workmanlike manner, (iii) in accordance with high industry standards and practices, (iv) in conformity with the specifications in the Purchasing Document, and (v) without a conflict of interest with respect to a third party. All results of the Services developed by Supplier, either alone or jointly with others, whether completed or in-progress (the “Deliverables”) will conform to the relevant specifications in the Purchasing Document and, to the extent there are no directly relevant specifications, to high industry standards. All Goods will be merchantable, free from defects in design, workmanship and materials, and conform to the specifications in a Purchasing Document. All Goods and Deliverables (including any item or process used by Supplier to provide the Services) will be free of hidden features and security defects. No component of any of the Goods or Deliverables will include any viruses, worms, time bombs, Trojan horses or other harmful or malicious code, files, scripts, agents or programs (“Malicious Code”). Supplier will not transmit to Smarthabit, or cause any Smarthabit system to be exposed to Malicious Code. Supplier will notify Smarthabit in writing and in reasonable detail immediately upon becoming aware of the existence of any Malicious Code contained in a Good or Deliverable. If any Good or Deliverable contains Malicious Code, or if Supplier transmits any Malicious Code to a Smarthabit system, Supplier will cooperate with Smarthabit, at Supplier’s expense, to promptly remove the Malicious Code and repair any corrupted files or data.
3. Supplier Personnel. Supplier will determine the methods, details, and means of performing the Services. Unless set forth in a Purchasing Document, Smarthabit will not control, direct, or supervise Supplier’s employees, independent contractors, vendors, agents, permitted subcontractors, and invitees (“Supplier Personnel”) in the performance of the Services. Supplier will use adequate numbers of qualified individuals with suitable training, education, experience and skills to perform the Services. Supplier agrees to take all reasonable measures to ensure that Supplier Personnel will not engage in inappropriate conduct while performing Services for Smarthabit and agrees that Supplier Personnel who engage in inappropriate conduct will be removed and replaced immediately upon Smarthabit reasonable request. Supplier will require Supplier Personnel performing any of the Services to observe at all times the security, confidentiality, and safety policies of Smarthabit. All Supplier Personnel will meet the licensing, security, labor and site requirements for the locale where the Services are being performed. Supplier will withhold and pay all amounts required for any employer or employee tax or contribution, including local, state and federal income tax, unemployment insurance and disability insurance. All Supplier Personnel performing Services are, and will for the period of assignment remain, employees or, where permitted by these Terms, subcontractors of Supplier and such Supplier Personnel will not be entitled to any of Smarthabit’s employee benefits. It will be Supplier’s sole responsibility to compensate and/or pay Supplier Personnel.
4. Subcontracting. Supplier will not subcontract any Services without the prior written consent of Smarthabit, which Smarthabit may grant or withhold in its sole discretion. If Smarthabit provides such written consent, then Supplier will have the primary obligation to perform the Services, and will be fully responsible for the performance of any subcontractor and the compliance with all of its obligations by any subcontractor. Supplier will, in its contracts with all permitted subcontractors and agents in the provision of Services, flow down all of its obligations.
5. Code of Conduct. Supplier acknowledges receipt of the Smarthabit Supplier Code of Conduct and agrees to provide a copy of it to all Supplier Personnel assigned to perform Services.
6. Compliance with Laws. Supplier will comply with all applicable international, federal, state, local laws and ordinances now or hereafter enacted.
7. Acceptance. Payment will not constitute acceptance of Goods or Deliverables. Unless otherwise provided in a Purchasing Document, acceptance of Goods or Deliverables will be deemed to occur if each Good or Deliverable conforms to the relevant specifications and standards and, in the case of Deliverables, is also approved in writing by an authorized representative of Smarthabit. Smarthabit will have the right to reject all or part, or require the correction, of any Good or Deliverable found not to meet the relevant specifications and standards, which item will be promptly replaced or corrected by Supplier. Smarthabit will have no payment obligation and/or will be entitled to a refund for defective or non-conforming Deliverables or Goods.
8. Warranty. Unless otherwise set forth in the applicable Purchasing Document, Supplier warrants that for a period of three (3) months following Acceptance, Goods and Deliverables will conform to the specifications in the Purchasing Document and, to the extent there are no directly relevant specifications, to high industry standards. During the applicable warranty period, Supplier will test, remedy and/or replace, without charge to Smarthabit, any and all portions of any Deliverables or Goods which Smarthabit finds to be defective or non-conforming. If Supplier is unable to remedy any defective or non-conforming Deliverable or Good within a reasonable period of time, Smarthabit may (a) terminate the Purchasing Document, (b) return all or part of the defective or non-conforming Deliverables or Goods to Supplier and/or (c) keep the defective or non-conforming Deliverables and Goods. Smarthabit will have no payment obligation and/or will be entitled to a refund for defective or non-conforming Deliverables or Goods.
9. Intellectual Property. For purposes of this Agreement, “Intellectual Property” means all intellectual property and proprietary rights, including without limitation all rights of inventorship and authorship, inventions, patents, patent applications, and know-how, for any product, process, method, machine, manufacture, design, composition of matter, or any new or useful improvement thereof, as well as copyrights, trademark, trade dress and service mark rights and all rights in trade secrets, computer software, proprietary information and data and databases.
9.1 Smarthabit Property. “Smarthabit Property” means the following: (1) Smarthabit ‘s Intellectual Property that Smarthabit owns prior to the Effective Date of the Purchasing Document or acquires separately or develops; (2) Intellectual Property conceived, produced or developed by Supplier, whether directly or indirectly or alone or jointly with others, in connection with or pursuant to Supplier’s performance of this Agreement; and (3) other Deliverables, Goods, or Services that are made by Supplier through the use of Smarthabit’s equipment, funds, supplies, facilities, materials and/or Smarthabit proprietary information. “Smarthabit Contracted Property” means Intellectual Property that falls within the scope of any of subsection 2 and 3 of the previous sentence. Supplier agrees to assign and hereby assigns to Smarthabit all of its respective rights, title, and interest in the Smarthabit Contracted Property and Smarthabit owns all right, title and interest in and to such Deliverables, Goods, and Services, the rights, title, and interest including all rights of inventorship and authorship, all patents and patent applications, all copyrights, all trademark and service mark rights, all rights in trade secret and proprietary information, all rights of attribution and integrity and other moral rights and all other Intellectual Property rights. Smarthabit grants Supplier no rights to Smarthabit Property beyond the scope of this Agreement.
9.2 Supplier Property. “Supplier Property” means Intellectual Property (1) created or acquired by Supplier before the Effective Date of the Purchasing Document and not assigned pursuant to a Purchasing Document or (2) independently developed by or for Supplier as part of Supplier’s normal business and not developed for or paid for by Smarthabit under a Purchasing Document. Supplier Intellectual Property may be included as part of the Goods, Deliverables, or Services, but the title to such Supplier Intellectual Property will remain with Supplier. However, except as provided in this section 9.2, for any Supplier Property incorporated into the Deliverables, Goods, or Services, Supplier grants Smarthabit a fully-paid up, perpetual and irrevocable, world-wide, non-exclusive license to: (a) prepare derivative works; and (c) make, use, have made, import, have imported, export, have exported, distribute, have distributed, publicly and privately perform, display and transmit derivative works and reproductions thereof, and to sublicense all of these rights for Smarthabit’s benefit and to sublicense such rights for Smarthabit’s benefit. Notwithstanding the foregoing, to the extent that the Goods, Deliverables, or Services to Smarthabit consist solely of training materials developed by Supplier without use of Smarthabit Intellectual Property or Smarthabit Confidential Information, such license and sublicense right will be solely for Smarthabit’s use in its internal business operations. Further, where the Good, Deliverables, or Services include providing entertainment, speaking, and/or participating as a host, lecturer, performer or guest in a meeting/conference, the rights granted in this paragraph will further include a grant to use Supplier’s likeness and performance in Smarthabit’s internal and external business operations and to record, and to broadcast, web cast or otherwise disseminate Supplier’s performance and likeness, in whole or in part, live or recorded, with or without audio or video, or with different audio or video throughout the world on all media, channels and manner of distribution now or hereafter known.
9.3 Third Party Intellectual Property. Supplier will prominently declare in the applicable Purchasing Document under a section entitled “Third Party Intellectual Property” any third party Intellectual Property or open source software (1) incorporated into any Services, Deliverables, or Goods or (2) that is required for use of any Deliverable or Good (each a “Dependency”). Each Dependency declaration will include all necessary documentation, including license terms and copyright notices, for Smarthabit to be able to adequately determine its rights to use and reproduce the Dependency. Smarthabit hereby rejects any Deliverables containing any Dependency that is not declared in a Purchasing Document or that is incompatible with the assignments or licenses granted in these Standard Terms or the Purchasing Document.
10. Delivery, Packing, and Shipment. Delivery of Goods and Deliverables will be strictly in accordance with the schedule set forth in a Purchasing Document. Any delays in shipment will be reported immediately by Supplier to Smarthabit. No partial deliveries or deliveries of additional items will be made without Smarthabit’s express prior written consent. Smarthabit reserves the right to cancel a Purchasing Document in whole or in part if Supplier fails to make deliveries in accordance with its terms. All Goods and Deliverables to be shipped will be prepared for shipment according to Smarthabit’s instructions, if any, and otherwise in a manner that follows good commercial practice, is acceptable to common carriers, and is adequate to ensure safe arrival. Supplier will mark all containers with necessary lifting, handling and shipping information, purchase order number, date of shipment and the names of Smarthabit and Supplier. Notwithstanding any prior inspections, Supplier bears all risk of loss, damage, or destruction until acceptance of Goods or Deliverables by Smarthabit.
11. Changes. Smarthabit may at any time make reasonable changes in the delivery schedules, designs, quantities, and specifications for Goods; provided that Smarthabit will pay only the reasonable costs associated with such changes.
12. Price. Prices for Services, Deliverables, and Goods are as specified in the Purchasing Document. Smarthabit will have no payment obligation for (a) additional or different Services, Deliverables, or Goods rendered other than those described in a Purchasing Document (unless the parties execute an approved change order), (b) Services performed or Goods delivered prior to the effective date of the Purchasing Document, or (c) amounts exceeding what is expressly authorized in the Purchasing Document. All applicable direct and indirect taxes, duties and similar levies, excluding value added tax (VAT), will be included in the estimated project costs contained in each Purchasing Document and will be clearly identified on applicable invoices. For purposes of these Terms, “indirect taxes” mean sales tax, use tax, value added tax (VAT), goods and services tax and/or consumption tax which Supplier may have an obligation to charge and collect from Smarthabit. Supplier is not responsible for a change in the indirect taxes resulting from a change in any code or regulation implemented after the submission of the estimated project cost.
13. Payment Terms. Unless otherwise provided in the Affiliate Guidelines or a Purchasing Document, (i) Supplier will invoice Smarthabit monthly; (ii) invoiced amounts for which no due date is otherwise established will be due and payable within sixty (60) days from receipt of an undisputed invoice. An acceptable invoice will be in the form and submitted in the manner designated in the Affiliate Guidelines for the Smarthabit entity that is a party to the Purchasing Document, and will include reference to: (i) the Smarthabit entity, (ii) the valid purchase order number, (iii) a description of the items, quantities, and unit prices for all Services, Deliverables and Goods invoiced; (iv) the name of the individual from Smarthabit who ordered the Services, Deliverables and Goods, (v) the contact information for an authorized representative of the Supplier, and (vi) any applicable VAT information (including the VAT code listed in the Affiliate Purchasing Guidelines, if any). Each invoice must reference only one (1) purchase order number, and Supplier will submit a separate invoice for each Purchasing Document. For invoices submitted via email or fax in compliance with the Affiliate Purchasing Guidelines, Supplier will submit only one (1) invoice per email or fax.
14. Expenses. Unless expressly authorized in the Purchasing Document, Supplier will not be entitled to be reimbursed for travel, living or other expenses. All authorized expense reimbursements will be made in accordance with the Travel and Expense Guidelines.
15. Confidential Information
15.1 Definition of Confidential Information. As used herein, “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. For clarity, the Parties agree that all information exchanged under this Agreement or any Order will be deemed Confidential Information. Notwithstanding the foregoing, with the exception of Personal Information (as defined below), which is not subject to the following exclusions, Confidential Information will not include any information to the extent that it can be established by written documentation by the Receiving Party that such information: (i) is or becomes generally known to the public without breach of any obligation of confidentiality by the Receiving Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) is received from a third party without breach of any obligation owed to the Disclosing Party and who has a legal right to disclose such information; or (iv) was independently developed by the Receiving Party without the use of the Disclosing Party’s Confidential Information. The Parties agree that, during the Term, including any extensions thereto, and for three (3) years thereafter, the Receiving Party will keep confidential and will not publish or otherwise disclose or use for any purpose other than as provided for in this Agreement the Confidential Information of the Disclosing Party.
15.2 Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to handle, treat, store, access (or limit access), and otherwise protect (including with encryption, as applicable) the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care). The Receiving Party: (i) will not use any Confidential Information of the Disclosing Party for any purpose outside the scope of, or as prohibited by, this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who are bound by obligations to the Receiving Party consistent with this Agreement.
15.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law or regulatory process to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted and practicable (e.g., there is sufficient time to provide such notice) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
15.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law or regulatory process to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted and practicable (e.g., there is sufficient time to provide such notice) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
15.4 Return or Destruction of Confidential Information. Upon written request, the Receiving Party will return to the Disclosing Party or destroy all Confidential Information received from the Disclosing Party during the Term of this Agreement except digital backup copies created through automated system processes provided that such backup copies are protected as Confidential Information by the Receiving Party for as long as the information is retained.
15.5 Ownership of Confidential Information. The Receiving Party acknowledges that, except as otherwise provided herein, (a) the Disclosing Party is the exclusive owner of and has all rights to its Confidential Information, including all intellectual property rights therein, such as patents, copyrights, trade secrets, trademarks, moral rights and similar rights of any type under the laws of any governmental authority (collectively, “Intellectual Property Rights”); and (b) no right, title, interest or license to the Receiving Party is either granted or implied under any Intellectual Property Rights by the disclosure of Confidential Information hereunder.
16. No Publicity. Supplier will not issue any press release or make any public statement relating to the subject matter of the Purchasing Document without Smarthabit’s prior written approval which may be revoked at any time. Any references to Smarthabit or use of any Smarthabit logo, brand or trademark (whether publicly, in connection with the Services, or otherwise) are prohibited without Smarthabit’s prior written approval.
17. Smarthabit Facilities. To the extent that any Purchasing Document requires or permits performance of Services by Supplier at Smarthabit facilities, Supplier will perform all Services during Smarthabit’s normal working hours (Monday through Friday, 8:00 a.m. to 6:00 p.m.), unless it would interfere with Smarthabit’s daily business and computer operations, or Smarthabit otherwise specifically requests the Services to be done outside of Smarthabit’s normal working hours. Supplier Personnel performing Services at Smarthabit facilities will be designated as a “visitor” of Smarthabit, and may be required to execute a standard confidentiality agreement upon each visit to Smarthabit facilities.
18. Indemnification. Subject to applicable law, each party’s sole indemnification obligation will be as follows: (a) Supplier will indemnify, defend (at Smarthabit’s option), and hold harmless Smarthabit and its affiliates, and each of their officers, directors, employees and agents from and against all thirdparty claims, demands, suits, causes of action, awards, judgments and liabilities, including reasonable attorneys’ fees and costs, (collectively “Claims”) arising out of or alleged to have arisen out of: (i) Supplier or Supplier Personnel’s negligence or intentional misconduct, (ii) any actual or alleged infringement, misappropriation, or violation of any intellectual property rights of a third party by any Deliverable or Good or in performance of the Services, (iii) Supplier’s failure to compensate or otherwise perform any obligation imposed on Supplier by law or contract with respect to Supplier’s employment or engagement of Supplier Personnel, in which case, Claims will include any payments assessed under U.S. Internal Revenue Code Section 4980H and any interest, penalties and additions to tax relating to such payments, or (iv) breach of a provision of a Purchasing Document; and (b) Smarthabit will only indemnify, defend, and hold harmless Supplier from and against third-party Claims to the extent the Claims are due solely to Smarthabit’s gross negligence or intentional misconduct. Supplier will have no liability for Smarthabit’s use of Goods or Deliverables outside the scope set forth in a Purchasing Document.
19. Insurance. Supplier will maintain insurance limits as described in Exhibit A Insurance Requirements.
20. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR LIABILITY ARISING UNDER SECTION 18 (INDEMNIFICATION), OR LIABILITY ARISING AS A RESULT OF BREACH OF OBLIGATION PURSUANT TO SECTION 15 (CONFIDENTIALITY) HERETO OR DATA SECURITY OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR DAMAGES FOR ANY CAUSE WHATSOEVER IN AN AMOUNT IN EXCESS OF THE AMOUNTS PAID OR DUE TO SUPPLIER UNDER THE PURCHASING DOCUMENT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT FOR LIABILITY ARISING OUT OF BREACH OF SECTION 15 (CONFIDENTIALITY) HERETO, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES ARISING FROM ANY CLAIM OR ACTION HEREUNDER, WHETHER BASED ON CONTRACT, TORT OR OTHER LEGAL THEORY.
21. Records and Audit. Supplier will maintain complete and accurate records to substantiate Supplier’s charges under this Agreement (including fees, costs, and expenses) for a period of six (6) years from the date of completion of the Services to which the records apply, and Supplier will promptly comply with Smarthabit’s reasonable request for copies of such records. Upon reasonable prior notice, Smarthabit (or an independent third party designated by Smarthabit) will have the right to visit, inspect, and audit Supplier’s facilities, records, and data to ensure Supplier’s compliance with its obligations, including those with respect to financial records and Smarthabit Confidential Information. All audits described in this Section will be conducted reasonably, during normal business hours, and taking reasonable precautions to minimize disruption to Supplier’s normal business. Such audit will be at Smarthabit’s expense unless such audit reveals an overcharge of five percent (5%) or greater or a material breach in Supplier’s obligations, in which case such audit will be at Supplier’s expense. All Supplier reviews or audits conducted by Smarthabit will be governed by the confidentiality terms described in Section 15 (Confidentiality) above. All review or audits conducted by Smarthabit’s third party designee will be governed by a confidentiality agreement between Supplier and Smarthabit’s third party designee, which will be the standard confidentiality agreement of such third party designee.
22. Term. A Purchasing Document will continue in force until the later of (a) completion of the Services or (b) expiration of all warranties for Goods or Deliverables. A Purchasing Document for Goods may be terminated or cancelled by Smarthabit, in part or in whole, for any reason immediately upon notice. A Purchasing Document for Services and/or Deliverables may be terminated or cancelled by Smarthabit, in whole or in part, for convenience with thirty (30) days prior notice. A Purchasing Document for Services and/or Deliverables may be terminated by Smarthabit, in whole or in part, effective as of the occurrence of Supplier’s curable breach if Supplier fails to cure the breach within thirty (30) days of notice of such breach from Smarthabit. A Purchasing Document for Services and/or Deliverables may be terminated by Smarthabit, in whole or in part, immediately upon Supplier’s incurable breach. Upon the effective date of termination by Smarthabit, Supplier will: (i) immediately cease all work under the Purchasing Document and Smarthabit will be liable only for authorized work completed as of the date of termination; and (ii) provide Smarthabit with any and all work in progress or completed work under the Purchasing Document. If Smarthabit elects to have Supplier continue performance under a Purchasing Document, it will remain in effect until both parties have fulfilled all of their obligations. Within thirty (30) days from the date of termination of a Purchasing Document, Supplier will submit to Smarthabit an itemized invoice for any previously approved fees or expenses accrued but unpaid until the time the Purchasing Document was terminated. There will be no charges for canceling Purchasing Documents for standard Goods. Any claim for cancellation charges for nonstandard Goods must be submitted to Smarthabit in writing within thirty (30) days after receipt of Smarthabit’s cancellation notice. Supplier’s claim may include: (i) the cost of unique Goods in process, and (ii) the cost of paying claims to Supplier’s vendors for work directly allocable to Goods cancelled and which cannot be diverted to other customers of Supplier’s vendors. Supplier will, whenever possible, place such Goods in process in inventory and sell them to other customers. In no event will any such claim for nonstandard Goods exceed the total price for Goods cancelled. Upon payment of Supplier’s claim, Smarthabit will be entitled to all work and Goods paid for. Smarthabit reserves the right to inspect Supplier’s work and Goods in process and to audit all relevant documents prior to paying Supplier’s claim.
23. Relationship of the Parties. At all times Supplier will be acting as an independent contractor, and will not be construed or deemed to be an employee, agent, partner, associate or joint venturer of Smarthabit within the application of any federal, state, city or local laws or regulations. Neither party has authority to assume or create any obligation or representation, express or implied, on behalf of or in the name of the other party, except as specifically provided herein.
24. No Lien. Neither Supplier nor any of its subcontractors or other third parties used by Supplier for the performance of any of the Services will have any lien, claim or encumbrance upon any Smarthabit property, and Supplier hereby waives, and will cause each of its subcontractors and any other third party used by Supplier for the performance of any of the Services to waive, any lien, claim or encumbrance upon any Smarthabit property.
25. Survival. Any term or condition which by its nature is clearly intended to survive the expiration or termination of this Agreement, will survive any expiration or termination of this Agreement, including Confidentiality, Indemnification, Limitation of Liability, Records and Audit, Term, and Entire Agreement Sections.
26. Entire Agreement. All references to “Purchasing Document” include these Terms. A Purchasing Document constitutes the entire agreement between the parties with respect to its subject matter, supersedes all prior agreements, whether written or oral, and supersedes and merges all prior discussions between Smarthabit and Supplier. Depending on the affiliate that is a party to the Purchasing Document, the Supplemental Terms may apply, and to the extent the Supplemental Terms apply, the Supplemental Terms will prevail over any conflicting terms in these Terms. A Purchasing Document may contain additional terms so long as they do not conflict with these Terms. These Terms will prevail over any conflicting terms of a Purchasing Document, unless the conflicting terms are in a Purchasing Document signed by Smarthabit and Supplier. Any terms, conditions or provisions of any Supplier quotation, confirmation, order acknowledgement, invoice, or other commercial document sent to Smarthabit are hereby rejected, and will not constitute additional or modified terms. Purchasing Documents will be construed according to their fair meaning and as if prepared by both parties. A Purchasing Document may be amended by a written document executed by both parties. A purchase order issued by Smarthabit may also be amended through the issuance by Smarthabit of a revised purchase order. The headings contained in these Terms have been inserted for convenience of reference only and are not intended to define, limit or affect scope or intent. If a provision of a Purchasing Document is held to be invalid, illegal or otherwise unenforceable, the remaining provisions will be unimpaired, and it will be replaced with a provision which comes closest to the intention of the parties. No failure or delay by either party in exercising any right under a Purchasing Document will constitute a waiver. Any waiver must be in writing executed by Smarthabit and Supplier and will not be deemed a waiver of any future breach. The remedies provided in a Purchasing Document are in addition to any other remedies of a party at law or in equity.
27. Force Majeure. Neither party will be liable for any default or delay in the performance of its responsibilities under a Purchasing Document if and to the extent such default or delay is caused, directly or indirectly, by fire, flood, earthquake, elements of nature or acts of God, riots, strikes, civil disorders, quarantine restrictions, epidemics, pandemics, or any other cause beyond the reasonable control of such party (“Force Majeure”). The time for performance for the non-defaulting party under the Purchasing Document will be extended as necessary, without penalty or liability to such party, for the same period of time as the delay. However, if it appears that the Force Majeure will result in a delay in Supplier’s performance of more than thirty (30) days, Smarthabit may, at its option, terminate the Purchasing Document immediately by written notice to Supplier.
28. Notices. All notices, permissions and approvals under a Purchasing Document will be in writing and will be effective upon: (a) personal delivery, (b) the third business day after mailing, (c) the second business day after sending by recognized overnight courier, or (d) the first business day after sending by email.
Notices to Smarthabit will be addressed to: contracts@smarthabit.co
29. Assignment. Neither party may assign any of its rights or obligations under a Purchasing Document, whether by operation of law or otherwise, without the prior written consent of the other party, except that either party may assign a Purchasing Document, in its entirety, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party.
30. Governing Law and Venue. This Purchasing Document will be governed by and construed in accordance with the laws of the State of Delaware applicable to agreements made and to be entirely performed within the State of Delaware, without resort to its conflict of law provisions. The state or federal court in New Castle County, Delaware will be the jurisdiction in which any suits should be filed if they relate to this Agreement.
Supplier will, at its own cost and expense, maintain insurance adequate for it’s offerings to Smarthabit, but in no case less than the following insurance limit. Such limits will be maintained during the term of a Purchasing Document, and Supplier will cause each of its agents, independent contractors and subcontractors performing any Services to maintain or be covered by the same insurance:
a) Workers’ Compensation (or locally applicable social scheme) as required by law where work is performed. Employer’s Liability insurance of not less than US$1,000,000 per employee and per accident. Coverage to include waiver of subrogation in favor of Smarthabit for any services performed on a Smarthabit location;
b) Commercial General (or Public) Liability insurance including Products, Completed Operations Liability, Personal Injury, Contractual Liability and Broad Form Property Damage Liability coverage for bodily injury (including death) or damages to any property of not less than US $1,000,000 per occurrence, $2,000,000 annual aggregate. “Smarthabit, Inc., its subsidiaries, officers, directors and employees” will be noted on the policy as an additional insured;
c) Professional Liability (or Professional Indemnity)/Errors and Omissions Liability Insurance in an amount not less than US$5,000,000 per claim. Such insurance will cover any and all acts, errors, omissions or negligence in the delivery of products and services under a Purchasing Document. The Professional Liability Insurance retroactive coverage date will be no later than the Effective Date of a Purchasing Document. If such coverage is written on claims made basis, Supplier will maintain coverage for a period of up to three (3) years following the termination of Services provided under a Purchasing Document. If Supplier is providing software, software development, software as a service or any technology services and products, then such Errors and Omissions insurance will include coverage for Network Security and Privacy and Media Liability including but not limited to malicious code, unauthorized use or access, failure of security, invasion of privacy, wrongful disclosure of data, other negligence in handling of confidential information and infringement of intellectual property (except patent infringement);
d) Commercial Automobile Liability. If an automobile is used by Supplier in connection with the performance of its obligations under a Purchasing Document, then Comprehensive Automobile Liability Insurance for any owned, non-owned, hired, or borrowed automobile is required in the minimum amount of US$1,000,000 each accident combined for bodily injury and property damage.
The foregoing insurance limits may be achieved by a combination of primary and umbrella policies. All insurance coverages required hereunder will be procured from insurers with a current A.M Best rating of not less than A- VII (or local equivalent). Where permitted by law, such policies will contain a waiver of subrogation in favor of Smarthabit. General Liability and Automobile Liability above will contain provisions stating they are primary and non-contributory with any insurance Smarthabit maintains. The insurance coverage described in this section will not limit the extent of Supplier’s responsibilities and liabilities specified within a Purchasing Document or by law. If requested by Smarthabit, certificates of insurance evidencing the required coverage will be furnished and will evidence that the insurance carriers will provide notice of cancellation or reduction in such coverage in accordance with policy provisions.