General Terms and Conditions Purchase Order
1. DEFINITIONS: As used in these General Terms and Conditions, "Order" shall mean this Purchase Order and all of its attachments and exhibits; "Materials" shall mean any materials, machinery, equipment, article, item, maintenance, construction or other services or work provided for in this Order; "LYCOS" shall mean Lycos, Inc., a Virginia corporation with its principal offices at 52 2nd Avenue, Waltham, Massachusetts 02451; "Seller" shall mean the person, proprietor, partnership, limited liability company, firm, corporation or other entity to which this Order is issued.
2. CONTRACT: When accepted by Seller, subject to Section 12 below, this Order shall constitute the entire contract between Seller and LYCOS with reference to the Materials. None of the general terms and conditions contained in this Order may be added to, modified, superseded or otherwise altered except by written instrument signed by an authorized representative of the party against which such changes are sought to be enforced, and each shipment received by LYCOS from Seller shall be deemed to be made only upon the general terms and conditions contained in this Order, notwithstanding any terms and conditions that may be contained in any acknowledgment, invoice or other form of Seller and notwithstanding LYCOS's act of accepting or paying for any shipment or similar act of LYCOS, except as otherwise indicated in this Order. By written instructions issued to Seller by an authorized representative of LYCOS's Purchasing Department, LYCOS may from time to time make changes, issue additional instructions, require additional Materials, or cancel Materials ordered hereunder. If any such change causes an increase or decrease in the cost of or the time required for the performance of this Order, an equitable adjustment shall be made in the price and/or delivery schedule, as applicable, and this Order shall be modified accordingly by written instrument signed by authorized representatives of Seller and LYCOS.
3. PRICE, TAXES AND TERMS:
(a) The Seller certifies that the prices specified in this Order are as low or lower than prices quoted by the Seller to any other customer purchasing the same type and/or quantity of specified Materials, as LYCOS.
(b) In the event that the Seller's published prices for the Materials covered by this contract are reduced below the prices specified in this Order, or if the Seller provides or agrees to provide the type and/or quantity of Materials covered by this contract to any other customer for a price lower than that specified in this Order, LYCOS shall receive the benefits of such reduction and shall pay the price or prices specified decreased by the amount of such reduction.
(c) Unless otherwise specified herein, the Seller must deliver the full quantity of goods, or complete to the satisfaction of an authorized representative of LYCOS's Purchasing Department, the full quantity of services, specified herein before any payment will become due from LYCOS.
(d) Shipment of Materials shall be accompanied by a shipping notice or a packing slip describing the contents of each package or container showing weight, quantity and order number.
(e) Shipment charges invoiced to LYCOS by Seller or any third party shall be supported and accompanied by the original receipted bill of Seller's or such third party's shipper. All prices quoted in the Purchase Order will include the cost of insurance and shipping unless otherwise agreed to.
(f) Seller shall show federal excise, state and or local taxes, if any, separately on invoice.
(g) Seller shall not substitute Materials or ship more than the quantity of materials ordered without express written authority from an authorized representative of LYCOS's Purchasing Department. Otherwise, LYCOS reserves the right to reject such Materials.
(h) The method of shipment and routing shall conform to LYCOS's instructions; otherwise, any extra costs shall be borne by Seller. If not otherwise specified by LYCOS, Seller shall ship Materials at the most economical prevailing means and rate consistent with safe and timely delivery of such Materials.
4. DELAY OR NONDELIVERY: If, upon Seller's receipt of this Order or at any time thereafter, Seller finds that it cannot ship the Materials within the time specified in this Order, Seller shall so notify LYCOS immediately by the fastest means possible and shall inform LYCOS of Seller's earliest possible shipping date (the "Revised Shipping Date"). LYCOS shall have the option upon ten days' notice to Seller either to cancel all or any part of the Order or to accept the Order and Seller's Revised Shipping Date. Seller's failure to ship the Materials by the Revised Shipping Date shall entitle LYCOS at LYCOS's sole option to cancel all or any part of the Order upon notice to Seller without prejudice to any other rights LYCOS may have in the Order or as a result of Seller's failure, or which may survive the termination of the Order.
5. QUALITY AND INSPECTION: The Materials supplied hereunder shall be of good quality, free from any faults and defects, in conformance with this Order, and shall at all times be subject to LYCOS's inspection before acceptance by LYCOS. Neither, however, LYCOS's inspection nor failure to inspect shall relieve Seller of any obligations, representations or warranties hereunder. If the Materials fail to conform to LYCOS's specifications or are otherwise defective, Seller shall promptly replace same at Seller's sole expense. Any services supplied hereunder shall be of good quality, free from any faults or defects and in conformance with this Order. All services not conforming to these requirements, including substitutions not properly approved and authorized, shall be considered defective, and Seller shall promptly correct such defective services at Seller's sole expense. No payment for or acceptance of Materials, including services, by LYCOS hereunder shall constitute a waiver of any of the foregoing nor shall anything herein contained be construed to exclude or limit any of Seller's warranties implied by law.
6. COMPLIANCE WITH AUTHORITY: Seller agrees to comply with all laws, orders, rules, ordinances, codes and regulations of any governmental body applicable to it, and shall furnish LYCOS such evidence of compliance as LYCOS may require at any time and from time to time. If Seller fails to comply with the above laws, orders, rules, ordinances, codes and regulations and as a result LYCOS is held liable for such Seller's failure by the applicable regulatory body or a court of law, then at LYCOS's sole discretion, Seller shall either pay fines, damages and/or other costs incident thereto or reimburse LYCOS for the payment of same.
7. PATENT AND OTHER INFRINGEMENT: Seller shall indemnify LYCOS and hold it harmless from and against any and all loss, liability or expense by reason of any claim or suit for alleged infringement of any copyright, trademark, patent, trade secret or other intellectual property resulting from or arising in connection with the manufacture, sale, normal use or other normal disposition of any Material furnished hereunder, or the performance of any work hereunder, and shall defend any such claim or suite and pay all costs and expenses incidental thereto; but at its option LYCOS shall have the right to participate in the defense of any such claim or suit without relieving Seller of any obligations hereunder.
8. INDEMNITY: Seller shall indemnify and hold harmless LYCOS and its parent and subsidiary companies and their respective employees, officers, directors, authorized representatives and stockholders from all claims, costs, liabilities, judgments, expenses, damages or losses resulting from any injury to property or persons due to any act, omission or negligence of Seller, its agents, employees or contractors or arising out of Seller's performance of this Order, or arising out of any breach or alleged breach of this Order or any representation or warranty made by Seller, its agents, employees or contractors.
9. ASSIGNMENT: Neither this Order nor any claim against LYCOS arising directly or indirectly out of, or in connection with, this Order, shall be assignable by Seller or by operation of law, nor shall Seller subcontract any obligations hereunder without the prior written consent of LYCOS.
10. DEFAULT: If Seller or its agents, employees or contractors breaches any provision hereof, LYCOS shall have the right (without limiting any other rights or remedies which it may have hereunder or by operation of law) to terminate this Order upon written notice to Seller. LYCOS's right to terminate this Order pursuant to this section shall not affect or be a waiver of any other rights and remedies LYCOS may have in this Order or which may survive the termination of this Order. LYCOS's right to require performance of any obligation hereunder shall not be affected by any previous waiver, forbearance or course of dealing by LYCOS. Time is of the essence for this Order.
11. LIENS: Before final settlement of Seller's obligations and payment by LYCOS, Seller shall satisfy LYCOS of the payment and release of all debts, taxes, liens, claims, charges and obligations of Seller arising by operation of law, or otherwise, out of Seller's performance of this Order. LYCOS may withhold without interest funds due Seller hereunder or otherwise sufficient to assure itself of the discharge of all such obligations, or to satisfy any provisions of law relating to any claims it may have against Seller arising from this Order.
12. CONTRACTS: This Order and its general terms and conditions shall be subject to contracts between Seller and LYCOS with respect to Materials covered in such Order and in such contracts only as specified on the front side of this Order and the terms and conditions of such contracts shall not supercede this Order and its General Terms and Conditions regarding such Materials unless so specified on the front of this Order. If there is a conflict between any term or condition of such contract and any term or condition of this Order, the affecting term or condition of this Order shall prevail unless it is explicitly specified to the contrary on the front side of this Order.
(a) Seller shall observe, comply with and afford LYCOS all applicable Uniform Commercial Code warranties contained in the Massachusetts General Laws, and Seller hereby acknowledges that LYCOS does not waive any of such warranties. This Order shall be interpreted in accordance with the laws of the Commonwealth of Massachusetts and in accordance with its fair meaning and not strictly against either party.
(b) If any goods specified in this Order include equipment and/or software which is date dependent in its function in any fashion ("Date-Dependent Material"), Seller represents and warrants that such Date-Dependent Material will process dates correctly prior to, during and after the calendar year 2000. This shall include but not be limited to century recognition, calculations that accommodate same-century and multicentury formulas, and date and interface values that reflect the century. If Seller becomes aware that the equipment or software may not or does not process correctly data containing any date subsequent to the year 1999, Seller shall immediately so notify LYCOS and promptly correct or replace the equipment or software to eliminate such problem. If Seller fails to correct or replace any Date-Dependent Material that does not meet the foregoing warranty within a reasonable period, LYCOS shall have the option of returning such Material (at Seller's expense) and receiving a full refund of all amounts paid for the equipment and software by LYCOS.
14. NOTICE: All notices given hereunder shall, unless otherwise specifically provided, be given in writing, by personal delivery, mail, electronic mail, or facsimile transmission at the respective addresses of Seller and LYCOS set forth in this Order, unless either party at any time or times designates another address for itself by notifying the other party thereof by certified mail, in which case all notices to such party shall thereafter by given at its most recently so designated address. Notice given by mail shall be deemed given on the date of mailing thereof with postage prepaid. Notice given by electronic mail or facsimile transmission shall be deemed given upon receipt thereof by the recipient.
15. CONSENT TO JURISDICTION: Any action to enforce, arising out of, or relating in any way to, any of the provisions of this contract maybe brought and prosecuted in such court or courts located in the Commonwealth of Massachusetts as is provided by law; and the parties consent to the jurisdiction of said courts located in the Commonwealth of Massachusetts and to service of process by registered mail, return receipt requested, or by other manner provided by law.
16. SEVERABILITY: In case one or more of the provisions contained in this contract should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby.
17. HEADINGS: Heading in the contract are for purposes of reference only and shall not limit or affect the meaning hereof.