These Master Terms and Conditions (these “Terms”) are between The Morgridge Institute for Research, Inc. (“MIR”) and the seller of products and/or services (“Seller”) to be acquired by MIR. The parties agree as follows:
Master Terms and Conditions:
This purchase order expressly limits acceptance to the Master Terms and Conditions available at morgridge.org/about/finance-sponsored-programs/master-terms-and-conditions/, and the Morgridge Institute hereby objects to any different or additional terms contained in any response to this purchase order or any prior communications from seller.
Products; Pricing; Precedence.
These Terms apply to all goods, services or software (“Products”) sold or licensed to MIR directly from Seller or from Seller’s authorized third‐party distributor or reseller. The parties intend these Terms to control the relationship between MIR and Seller with respect to all Products. The Products to be furnished under these Terms are subject to the pricing set forth in a purchase order referencing these Terms. The Products shall be delivered F.O.B. MIR with transportation, insurance, and any other related charges paid by Seller. The parties may add additional purchase orders upon mutual agreement. These Terms are the only terms and conditions applicable to the purchase and sale of Products. As such, the parties expressly agree that they do not intend for any provision of any Seller or Seller’s authorized distributor or reseller acknowledgement, invoice or other form to apply to the purchase and sale of Products except as evidenced by a written agreement duly executed by the parties. For clarity, the parties agree that the terms of any click‐through, browse‐wrap, shrink‐wrap or similar license agreement accompanying the Products, or on any Seller invoice, are rejected by MIR and no other terms shall apply unless such terms have been executed by both parties. These Terms shall control with respect to the purchase and sale of Products whether such sale occurs directly from Seller or from Seller’s authorized distributor or reseller. No amendment to these Terms or any order placed hereunder will be binding unless agreed to in writing and executed by the parties, and no approval, consent, or waiver will be enforceable unless the granting party signs it. No document will be deemed to amend these Terms by implication.
If the Product is, or contains, software, Seller hereby grants MIR a non‐exclusive, worldwide, royalty‐free license to use the software in connection with MIR’s operations. Except for the licenses granted in these Terms, Seller and its third‐party licensors retain all right, title and interest in and to (i) the software and all copies, versions, enhancements and derivative works thereof (other than those performed by MIR as permitted) including, without limitation, all related materials and documentation, and (ii) all intellectual property rights in the foregoing throughout the world.
If any of the software is open source software, or if the software is based upon or otherwise incorporates open source software, Seller shall (i) notify MIR that the software contains open source software on or before delivery of the Product incorporating the open source software to MIR; (ii) identify for MIR all programs, functions, libraries, or other software modules that are open source software; (iii) provide MIR a copy of the open source software license; and (iv) comply with the terms of the open source software license.
MIR may request reasonable email, online, telephone, and on‐site support from Seller, which Seller shall provide, to solve problems with Product and field issues identified by MIR. Except as otherwise specified in a purchase order, all costs will be borne by the party incurring them. Seller shall provide on‐going (post product release) technical support. MIR and Seller will work jointly to accomplish this support including on‐site presence by Seller if required.
The Seller hereby warrants that (i) all Products will be of merchantable quality, and free from defects in material or workmanship; (ii) if the purpose(s) for which the Products are required is made known to the Seller expressly or by implication, the Products shall be fit for such purpose(s); (iii) the Products will function in accordance with the applicable documentation and specifications (including any published or draft industry standards); (iv) that all documentation (including technical documentation or user manuals) is sufficiently detailed and complete and accurately describes the functional and operational characteristics of the applicable Product; (v) all services provided by Seller will be performed in a professional and worker‐like manner to the satisfaction of MIR, and, if defective, Seller shall, without limiting any other remedy MIR may have with respect to the performance of the Services, either re‐perform the services to the satisfaction of MIR or refund the fees paid for non‐conforming services; (vi) the Products were produced and are provided in accordance with all applicable local, state, federal, and other governmental laws, rules, regulations, and ordinances; and (vii) if the Products are provided pursuant to a request for proposals (“RFP”), that the Products will meet or exceed the standards set forth in Seller’s response to the RFP. The Products are subject to inspection and approval by MIR after delivery. MIR may reject and return at the risk and expense of Seller all or any portion of the Products that do not satisfy the foregoing warranties.
In addition, at the time of Seller’s sale of the Product, Seller warrants that there are no lawsuits pending that allege that the Product infringes upon any patent, trademark, copyright, trade secret or other intellectual property or proprietary right of any third party; and that there is no threatened suit or claim against Seller based on an alleged violation of any such right.
Seller further warrants that it has the full authority to sell the Products, and has good and marketable title to the Products, including title to or right to license all of the inventions, copyrights, information, materials, work or components.
With respect to any software, Seller warrants that (i) the media on which the software is delivered will be free from defects under normal use; (ii) the software, if unmodified and operated as directed by Seller, will conform substantially to Seller’s then current functional specifications for the software; (iii) the documentation and specifications are sufficiently detailed and complete and accurately describe the functional and operational characteristics of the software, including updated versions of all such documentation when enhancements to the software are provided by Seller; (iv) Seller has the right to distribute and license the software to MIR in accordance with these Terms and Seller has complied with all terms of all applicable license agreements for the software including any applicable open source software and commercial licenses; and (v) the software does not contain any virus, worm, trap door, back door, timer, clock, counter or other limiting routine, instruction or design that would erase data or programming instructions or otherwise cause the software or the Product to become inoperable or incapable of being used in the full manner for which it was designed and created.
For any Product failing to meet these warranties (a “Defective Product”), without limiting any other remedy MIR may have, Seller shall replace or repair the Defective Product subject to the return procedures of this Section. MIR shall provide Seller written notice of the warranty claim and return to Seller the Defective Product. Within 30 days of Seller’s receipt of the warranty claim, Seller may reject the warranty claim upon written notice to MIR explaining in sufficient detail the reason for rejecting the warranty claim and upon return of the Defective Product. If Seller does not reject a warranty claim within 30 days, the warranty claim is deemed valid. Seller shall warrant any replacement or repaired Product for the unexpired term of the warranty for the Defective Product. Seller is responsible for all costs, fees, expenses or other related charges (including the costs associated with shipping, return, replacement, substitution, and repair of Defective Products) with respect to any recall of any Products.
Use of names.
Neither party may use the name of the other party in any way for advertising or publicity without the express written consent of the other party.
The parties hereto agree to keep any information identified as confidential by the disclosing party using methods at least as stringent as each party uses to protect its own confidential information, but no less than a reasonable degree of care. “Confidential Information” shall include the terms of this Agreement and any other information marked confidential or accompanied by correspondence indicating such information is exchanged in confidence between the parties. The confidentiality and use obligations set forth above apply to all or any part of the Confidential Information disclosed hereunder except to the extent that: (i) the receiving party can show by written record that it possessed the information prior to its receipt from the disclosing party; (ii) the information was already available to the public or became so through no fault of the receiving party; (iii) the information is subsequently disclosed to the receiving party by a third party that has the right to disclose it free of any obligations of confidentiality; or (iv) the information is required by law, rule, regulation or judicial process to be disclosed. Seller may use MIR’s Confidential Information only for the purpose of satisfying its obligations to MIR hereunder, and Seller shall have no right or license to use the Confidential Information for any other purpose.
Seller shall indemnify, defend and hold MIR, its agents, trustees, employees, and representatives (“Indemnified Parties”) harmless from and against, and pay all costs (including attorneys’ fees), settlement payments and any and all other damages, resulting from (i) any actions relating to or arising out of any acts or omissions of Seller, or any of its subcontractors, sellers, officers, licensors, agents or employees; (ii) any breach of these Terms (including, for clarity, any warranty set forth herein); and (iii) any actions alleging that a Product infringes any patent, trademark, or copyright or misappropriates a trade secret or other intellectual property of any third party.
If a Product delivered to an Indemnified Party is alleged to infringe any patent, copyright, or mask work right, and the Indemnified Parties are prevented from using the Product, Seller will, at its expense and without limiting any other rights of MIR hereunder, do one of the following: (i) procure for the Indemnified Party the right to continue to use and sell the Product free from any liability for that infringement, (ii) replace the Product with a non‐infringing substitute which is functionally and technically equivalent to the Product and reimburse Indemnified Party for its additional cost of replacing the substitute; or (iii) if (i) and (ii) are not commercially feasible, refund the amounts paid by MIR to Seller with respect to those Products that MIR has returned to Seller.
Seller’s indemnification obligations are not subject to any of the “limitation of liability” provisions in these Terms.
Limitation of Liability; Insurance.
MIR SHALL NOT BE LIABLE TO SELLER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, FOR PROPERTY DAMAGE, EQUIPMENT RE‐WORK, EQUIPMENT DAMAGE, DOWNTIME COSTS, CLAIMS OF MIR’S BUYERS, OR LOSS OF PROFITS, REVENUE, OR DATA, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
Seller now maintains and will continue to maintain liability insurance coverage appropriate to the risk involved under these Terms (including its obligation to indemnify MIR) and that such insurance coverage shall, at MIR’s request, list MIR as an additional insured. MIR may request that Seller will present evidence to MIR that the coverage is being maintained with MIR listed as an additional insured.
In addition, Seller shall provide MIR with at least thirty (30) days prior written notice of any change in or cancellation of the insurance coverage.
If the Products have been provided or designed in accordance with specifications furnished or originated by MIR, then any data, reports, know‐how, physical or intellectual property or other materials prepared, produced, or delivered in connection with the Products (“deliverables”) shall be deemed “works made for hire” pursuant to 17 U.S.C. § 201(b), and MIR will be deemed the author and copyright owner. Seller shall not reproduce or disclose the deliverables to any third parties without MIR’s prior written consent. If MIR provides any materials to Seller, including drawing, photographs, data and other written material or information, such materials will remain the property of MIR and will be returned promptly upon request.
Term; Termination; Survival.
These Terms are effective as of the Effective Date and will expire three (3) years after the effective date (“Initial Term”), unless terminated as provided herein. These Terms will automatically renew for additional one year terms unless a party provides the other party with notice of non‐renewal at least sixty days prior to the end of the then‐current term.
Either party may terminate these Terms immediately for cause upon notice to the other party for any of the following reasons: (i) the other party makes a general assignment for the benefit of creditors, or a receiver or similar officer is appointed to take charge of any of the other party’s assets; (ii) the other party enters into any composition with creditors or is subject to an order made or resolution passed for it to be wound up or for the appointment of a judicial manager; (iii) the other party ceases to carry on its business or operations; (iv) a bankruptcy or similar petition is filed by or against the other party, and in the case of an involuntary petition, the proceeding is not dismissed within sixty (60) days; or (v) the other party fails to perform any material obligation under these Terms, and such failure is not cured within thirty (30) days written notice thereof.
MIR may terminate these Terms immediately for cause upon notice to Seller if Seller changes company ownership to another party or it sells all or substantially all of its assets related to the subject matter of these Terms. If ownership of Seller or its business changes, then Seller shall notify MIR in writing of change in ownership within two (2) calendar days of public notification.
The following Sections survive the termination of these Terms: “Products; Pricing”, “Software License”, “Warranties”, “Use of names”; “Indemnification”, ”Limitation of Liability; Insurance”, and “Miscellaneous,” together with any other provisions that would reasonably be expected to survive termination.
These Terms have been made in the United States. These Terms shall be governed by and construed in all respects in accordance with the laws of the State of Wisconsin. Each party hereby submits to the exclusive jurisdiction of the state and Federal courts located in Dane County, Wisconsin for purposes of any such proceeding.
If any provisions of these Terms are or shall come into conflict with the laws or regulations of any jurisdiction or any governmental entity having jurisdiction over the parties or these Terms, those provisions shall be deemed automatically deleted, if such deletion is allowed by relevant law, and the remaining terms and conditions of these Terms shall remain in full force and effect. If such a deletion is not so allowed or if such a deletion leaves terms thereby made clearly illogical or inappropriate in effect, the parties agree to substitute new terms as similar in effect to the present terms of these Terms as may be allowed under the applicable laws and regulations. A waiver of a breach of any term of these Terms will not be construed as a waiver of any succeeding breach of that term or as a waiver of the term itself. A party’s performance after the other’s breach will not be construed as a waiver of that breach.
Any notice required to be given pursuant to the provisions of these Terms shall be in writing and shall be deemed to have been given at the earlier of the time when actually received as a consequence of any effective method of delivery, including but not limited to hand delivery, transmission by telecopier, or delivery by a professional courier service or the time when sent by certified or registered mail addressed to the party for whom intended at the address below or at such changed address as the party shall have specified by written notice, provided that any notice of change of address shall be effective only upon actual receipt.
614 Walnut Street
Madison, Wisconsin 53726
These Terms constitute the full understanding between the parties with reference to the subject matter hereof, and no statements or agreements by or between the parties, whether orally or in writing, except as provided for elsewhere in this Section, made prior to or at the signing hereof, shall vary or modify the written terms of these Terms.