Purchase Order Terms and Conditions

These Terms and Conditions apply when referenced by ESFM’s Purchase Order

1. Definitions.
   In these ESFM-USA Terms and Conditions the following words shall have the following meanings:

1. 1. “Client” means the ESFM customer that owns, leases or occupies the property or the facility where the goods will be used or services will be performed.
   2. “Client Locations” means the ESFM Client sites where the Goods will be used or the Services will be delivered.
   3. “Days” shall mean calendar days.
   4. “Statement of Work” or “SOW” means an agreement that governs a Vendor relationship with a specific client.
   5. “Master Vendor Agreement” or “MVA” means an agreement that governs the entire relationship for the vendor with either Compass Group USA, Inc. or ESFM.
   6. “Purchase Order” or “PO” means the written order for goods or services from ESFM which incorporates by reference these ESFM-USA Terms and Conditions of Purchase.
   7. “Vendor” or “Subcontractor” means the person(s) or legal entity providing the Goods or Services to ESFM under the Purchase Order.

2. Scope. Vendor’s provision of any goods, equipment or services under a purchase order, shall constitute ESFM’s acceptance of these terms and conditions. These terms and conditions and any exhibits attached or incorporated by reference to the purchase order (“Order”) constitute the entire and exclusive agreement between the ESFM and Vendor. The ESFM expressly objects to the inclusion of any additional terms or conditions, written or oral, and such are hereby deemed to be material alterations and are hereby rejected. All capitalized terms not defined herein shall have the meanings ascribed to them in the Order.
3. Acceptance and Rejection of Goods, Equipment or Services. Vendor agrees to furnish the goods, equipment and services (“Purchases”) in strict compliance with the specifications set forth in this Order and ESFM may at any time insist upon strict compliance with the terms and conditions of this Order notwithstanding any previous custom, practice, or course of dealing to the contrary. In the event Vendor fails to comply with the terms and conditions of this Order, ESFM shall promptly notify the Vendor and ESFM may, (x) for goods or equipment, in ESFM’s reasonable discretion, either (i) return the goods to Vendor, at Vendor’s expense; or (ii) make the non-conforming goods or equipment available for pickup by Vendor within thirty (30) Days following ESFM’s notice, after which time ESFM may dispose of the Purchases without any liability to Vendor, and Vendor shall be responsible for all costs incurred by ESFM to store such non-conforming Purchases; or (y) for services, Vendor shall at ESFM’s request, promptly repair replace, or re-perform any defects in services without additional cost, expense or liability to ESFM and to the reasonable satisfaction of ESFM.   If the Vendor is unable to provide the conforming Purchases within a reasonable period, within the sole reasonable judgment of ESFM, then ESFM may, in ESFM’s reasonable discretion, either (i) procure a substitute Purchase elsewhere and charge Vendor for any additional expense incurred; (ii) require Vendor to provide substitute Purchases that conform to the terms of this Order or; (iii) require Vendor to credit ESFM for the Purchases. ESFM will not be responsible for any Purchases delivered without an Order. Substitutions will not be accepted without ESFM’s prior written approval. ESFM shall not be deemed to accept any Purchases if the defective condition of such Purchases could not be determined by ESFM’s reasonable inspection.
4. Payment. Within ten (10) Days of delivery of the Purchases or within ten (10) Days following completion of performance of services, Vendor shall render an invoice for each Purchase pursuant to this Order specifying the nature of the Purchase (i.e. quantity and cost) date shipped or services performed, as applicable, all amounts due, ESFM’s Order number, and any other information requested by ESFM. No more than one monthly invoice may be submitted to ESFM for services performed under this Order. Each invoice properly submitted to ESFM pursuant to this Order shall be due and payable by ESFM within ninety (90) Days after receipt of the invoice; provided, if applicable, Vendor acknowledges and agrees that a condition precedent to ESFM’s payment of compensation to Vendor is ESFM’s receipt of funds from ESFM’s Client for the Purchases under this Order, and Vendor has no personal recourse against ESFM for payment of compensation hereunder other than against funds received by ESFM from ESFM’s Client for purposes of paying Vendor.
5. Termination. ESFM may terminate the Order or any part thereof, upon written notice to the Vendor, in accordance with the following: (i) at any time for its sole convenience without penalty; or (ii) for cause for any of the following: (x) if Vendor fails to comply with any provision of this Order and fails to cure such breach within five (5) Days of receiving notice of such breach from ESFM; (y) if Vendor becomes insolvent or suffers a voluntary or involuntary petition in bankruptcy to be led against it or executes an assignment for the bene t of creditors; or (z) if Vendor loses its license, accreditation, certification or other authorization needed to provide the Purchases. ESFM shall pay Vendor the Order price for all Purchases accepted prior to termination. ESFM shall not pay Vendor for any Purchases received or performed, including costs incurred by Vendor’s Vendors or subcontractors, after the effective date of termination. Vendor shall refund to ESFM any amounts prepaid for Purchases not provided or accepted prior to termination.
6. Delivery.
   1. 1. 1. Timing of Delivery. Time is of the essence in connection with this Order. Delivery of all Purchases shall be made as described in this Order. If delivery dates cannot be met, Vendor must inform ESFM immediately. ESFM reserves the right to change delivery schedules upon seven (7) Days written notice to Vendor.
         2. Risk of Loss. Unless otherwise specified by ESFM, delivery shall be F.O.B. Destination for all Goods not used by a Vendor in the performance of any Services. Risk of loss shall not pass to ESFM until the Purchases have been accepted by ESFM at the Destination. Vendor assumes full responsibility for packing, crating, marking, transportation and liability for loss or damage in transit, notwithstanding any agreement by ESFM to pay freight, express or other transportation charges. Where the purchase under this PO includes Services, Vendor shall bear the risk of any Loss to all Products to be used by Vendor in the performance of the Services, wherever located, and all uncompleted Services.
7. Confidentiality. Vendor, including its employees, shareholders, directors, officers or agents, agrees to keep strictly confidential at all times all information that it receives from ESFM or ESFM’s Client (each a “Disclosing Party”) under this Order, including, but not limited to, the identity of a Disclosing Party’s Client, potential Client, vendor and any data, materials, products, technology, computer programs, specifications, manuals, business plans, software, marketing plans, business plans, financial information, individual financial information, pricing and other information disclosed or submitted, orally, in writing, or by any other media (“Confidential Information”). The obligations set forth in this section do not apply to any Confidential Information that Vendor can demonstrate: (i) Vendor possessed prior to disclosure by the Disclosing Party, without an obligation of confidentiality; (ii) is or becomes publicly available without breach of this Order by Vendor, other than nonpublic Client or employee information; (iii) is or was independently developed by Vendor without the use of any Confidential Information of a Disclosing Party; or (iv) is or was received by Vendor from a third party that does not have an obligation of confidentiality to a Disclosing Party or its affiliates. All Confidential Information shall remain the property of ESFM and/or ESFM’s Client and will be returned to ESFM upon termination of this Order.
8. Indemnification. In consideration of ESFM purchasing the Purchases specified in this Order, the Vendor hereby agrees to indemnify and hold harmless, to the fullest extent permitted under law, Vendor shall indemnify Compass and Client for any and all Losses (as defined below), of whatever nature and however caused, which results from or arises out of Compass’ indemnity obligations to Client related to this Local Agreement or any Work Order under it or Vendor’s or its officers, directors, shareholders, Vendor Personnel, vendors, Vendors, representatives, affiliates, successors, and assigns, acts or omissions or breach of representations and warranties. If and to the extent that Compass is required to indemnify Client, “Loss(es)” includes any claim, including third party claims, liability, loss, demand, suit, cause of action, settlement payment, cost and expense (including reasonable attorney’s fees and investigation expenses), interest, award, judgment, damages (including punitive damages), diminution in value, liens, fines, fees and penalties.
9. Representations and Warranties. Vendor represents and warrants to ESFM that Vendor has all necessary experience, qualifications, expertise, authority, licenses and permits to enable it to perform its obligations under this Order.
   1. 1. 1. Goods and Equipment. Vendor represents and warrants that all goods delivered shall be merchantable and/or t for the purposes for which such goods are intended or ordinarily employed. Further, Vendor warrants that all goods delivered shall be free from defects in materials and workmanship and shall conform to all applicable specifications, drawings, and other descriptions for a period of one (1) year from the date of delivery to ESFM or for the period provided in Vendor’s standard warranty covering the goods, whichever is longer. Any replacement or repaired goods or equipment shall be warranted for the remainder of the warranty period or three (3) months, whichever is longer.
         2. Services. Vendor represents and warrants that all services shall be completed in a professional and workmanlike manner, with the degree of skill and care that is required by current, good and sound professional procedures. Further, Vendor warrants that it owns or possesses all licenses and other rights necessary with respect to all software and other materials used in providing the services under this Order. Vendor represents and warrants that the performance of services hereunder will not conflict with, or be prohibited in any way by, any other agreement or legal restriction to which Vendor is bound.
         3. Laws. Vendor represents and warrants that the provision of Purchases hereunder, Vendor has complied with all applicable Laws. If Vendor is performing services on-site at ESFM’s or ESFM’s Client’s premises, Vendor shall conform to and comply with all of ESFM’s and ESFM’s Client’s rules, regulations, procedural practices and instructions regarding Vendor’s activities.
         4. Non-Exclusion. Vendor represents and warrants that neither Vendor nor its employees, representatives, agents, Vendors, or subcontractors performing services or supplying goods/equipment under this Order is (i) on the list of suspended, excluded, sanctioned or debarred providers issued by the Office of Inspector General, General Services Administration, Office of Foreign Assets Control, or similar agencies of the state in which the services are performed or (ii) are suspended, excluded from or sanctioned by, any federal or state health care plan or program. Vendor shall notify ESFM immediately in the event that Vendor receives notice of such suspension, exclusion, sanction or debarment affecting itself or any of its employees, representatives, agents, Vendors, or subcontractors performing services or supplying goods/equipment under this Order.
10. Compliance with Law.
    1. 1. 1. Access to Books, Documents and Records. Vendor shall maintain complete and accurate records of all amounts billed to and payments made by ESFM in accordance with recognized accounting procedures. Vendor shall retain such records for a period of four (4) years from the date of payment. Vendor agrees to provide reasonable supporting documentation concerning any disputed amount of an invoice to ESFM within ten (10) Days after ESFM provides written notice of the dispute to Vendor. All such records related to the Purchases hereunder may be audited or inspected by ESFM or their agents or representatives upon reasonable notice.
          2. Nondiscrimination. Neither party will discriminate in any unlawful manner. The parties shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60- 300.5(a) and 60-741.5(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, sexual orientation, gender identity, sex, or national origin. Moreover, these regulations require that the parties take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sexual orientation, gender identity, sex, national origin, protected veteran status or disability.
11. Insurance. Vendor shall at all times during the term of this Agreement, at their sole cost and expense, carry and maintain the insurance in such amounts as set forth below, except as otherwise specified in a Statement of Work, and such other insurance as may be required by law or prudent business practices. Vendor’s insurance shall either cover all Services provided by its subcontractors or Vendor shall require its subcontractors to carry all insurance required under this Agreement. Before initiation of Services, Vendor shall furnish to Compass certificates of such insurance and/or copies of the applicable policies. All such insurance shall operate independent and apart from Vendor’s indemnification obligations hereunder, and the insurance requirements herein shall not be deemed a limit on Vendor’s liability or obligations and are not to be considered as indicative of the ultimate amounts and types of insurance that Subcontractor may need to protect its own interests. Compass shall not have any liability to Vendor for any additional insurance Vendor may purchase to comply with the terms of this Agreement. All coverage shall be underwritten by companies authorized to do business in the state of the Client Locations and currently rated A- or better by A.M. Best Company or otherwise acceptable to Compass

*Limits for these policies may be satisfied through a combination of primary and excess policies.

12. Limitation of Liability. EXCEPT FOR VENDOR’S INDEMNITY AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, ANY CLAIM FOR DAMAGES BASED ON LOST REVENUES OR PROFITS, HOWEVER, CAUSED OR UNDER ANY THEORY OF LIABILITY.
13. Setoff. ESFM may deduct, recoup and set off any amounts that Vendor or any affiliate of Vendor then owes to ESFM or amounts from Claims ESFM may suffer related to this Order, whether under the Order or in order to avoid or settle the ling of a lien by a Vendor of Vendor for Purchases, or otherwise and whether or not Vendor shall have assigned to another its rights to receive amounts that ESFM is required to pay under the Order.
14. Independent Contractor. Vendor and, its employees, agents, Vendors and subcontractors are independent contractors with respect to ESFM and are not employees of ESFM, and such persons shall not be considered or represent themselves as employees or agents of ESFM.
15. Assignment. No part of this Order may be assigned, transferred, or subcontracted, other than to an affiliate or subsidiary, by either party without the other party’s prior written consent and such assignee shall be subject to all claims and defenses that Vendor and ESFM at any time may have against the other under this Order. All assignees, transferees, agents and/or subcontractors must agree to be bound to the terms and conditions of this Order.
16. Product Recalls. Vendor shall monitor the recall status of all Purchases related to this Order and must notify ESFM of any such recalls not more than 72 hours after Vendor first learns of any recall. Recall notices must include instructions and information regarding the recall and appropriate action to be taken by ESFM. Vendor must pay all costs associated with the correction of the recall and actions taken in response to the recall.
17. Use of Name. Vendor will not: (a) use the name, trademark, logo or other identifying marks or proprietary indicia of ESFM or ESFM’s Client, or any affiliate thereof, in any sales, marketing, promotional or publicity activities or materials; or (b) issue any press release, interviews or other public statement regarding this Order or the parties’ relationship, without the prior written consent of ESFM and, if applicable ESFM’s Client.
18. ESFM Code of Conduct. ESFM strives to demonstrate high ethical standards in its business practices. The ESFM Code of Conduct, available for review at Policies | Compass Group (compass-group.com), contains the minimum standards by which the parties are expected to conduct themselves when performing their respective obligations under this Agreement. ESFM shall have the right, in its sole and absolute discretion, to immediately terminate this Order for cause in the event of any violation of the ESFM Code of Conduct by Vendor.
19. Order of Precedence. In the event of any conflict or ambiguity between a PO, including these ESFM-USA Terms and Conditions, and any Exhibits, Addenda or Schedules incorporated as part of the Purchase Order, the following order of precedence shall be applied to resolve such conflict or ambiguity:
    1. 1. Any applicable Master Vendor Agreement or Statement of Work;
       2. These ESFM-USA Terms and Conditions;
       3. The Purchase Order, excluding these ESFM-USA Terms and Conditions; and
       4. Any Exhibits, Addenda or Schedules incorporated as part of the Purchase Order (except when specifically constructed to take precedence over these ESFM-USA Terms and Conditions)
20. Entire Agreement; Modifications. Except as may be described elsewhere in these ESFM-USA Terms and Conditions, the PO, together with the attachments, exhibits, supplements or other terms of ESFM specifically referenced therein, constitutes the entire agreement between Vendor and ESFM with respect to the matters contained in the PO. The PO may only be modified by a written amendment executed by authorized representatives of each Party or, for changes within the scope of these ESFM-USA Terms and Conditions, by a PO amendment issued by ESFM.
21. Miscellaneous. Notice. Notice by email by ESFM shall be deemed sufficient notice. Survival. Any obligations and duties, which by their nature extend beyond the expiration or termination of this Order, shall survive the expiration or termination of this Order. Severability. If any item, provision, or condition of this Order is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated as a result of such decision. Waiver. ESFM’s failure to insist on performance of the terms and conditions herein or to exercise any right or privilege or ESFM’s waiver of any breach hereunder, shall not thereafter waive the same or other terms, conditions, rights, privileges or affect any subsequent breach. Jurisdiction. This Order shall be construed in accordance with, and disputes shall be governed by the laws of the Commonwealth of Pennsylvania, without giving effect to any choice or conflict of law provisions or rule. Vendor irrevocably consents to jurisdiction and venue for all controversies arising out of, or relating to this Order in the courts in Pennsylvania and agrees to litigate such disputes only in those courts.