Purchase Order Terms & Conditions
Last Revised October 15, 2020
In the absence of a separate written agreement, duly executed by both parties, these Purchase Order Terms and Conditions ("Terms and Conditions") together with a purchase order ("Purchase Order") issued by United Wholesale Mortgage, LLC ("UWM") and any attachments incorporated or referenced therein (collectively, the "Agreement") govern the purchase of goods ("Goods") and/or services ("Services") specified in a UWM Purchase Order between UWM and Vendor.
- DEFINITIONS. The following definitions apply to these Terms and Conditions:
- "Affiliate(s)" are any company in which UWM owns (directly or indirectly) at least twenty percent (20%) of the voting interest.
- "Claim" is any civil, criminal, administrative, or investigative action or proceeding.
- "Confidential Information" means all information or material of such party, including information or material relating to the Intellectual Property Rights, operations, financial conditions, business (including
business practices) of Vendor or UWM, regardless of whether it is reduced to writing or other tangible expression and whether exchanged or accessed by either Party before or after the Start Date. Confidential Information may be contained
in any medium and is information which such entity considers to be proprietary and confidential. Confidential Information includes, but is not limited to:
(i) all information relating to research and development, discoveries, improvements, processes, know-how, patents, copyrights, trademarks, trade names, trade secrets, and any application for any patent, copyright or trademark;
(ii) all descriptions, financial data, business plans, relationships, personnel information, technical specifications, computer hardware or software, information systems, customers lists, costs, processes, products, services, strategic plans, other plans or proposals, and all information encompassed in the foregoing; and
(iii) any and all Consumer Information.
Information relating to each Party's consultants, employees, customers, members, vendors, research and development, software, financial condition or marketing plans is also considered Confidential Information. Confidential Information also includes all notes, memoranda or other work product based on, in whole or part, any Confidential Information.
- "Consumer Information" means customer information as set forth in 16 C.F.R. §314.2(b) (2003) as well as any information that identifies a customer or consumer (as such terms are defined by the Gramm-Leach-Bliley Act of 1999 (Public Law 106-102, 113 Stat. 1338), as amended from time to time) and information from which a customer's or consumer's identity can be ascertained, either from the information itself or by combining the information with information from other sources. Consumer Information also includes any information UWM (including any Affiliate) may directly or indirectly disclose to Vendor or to which Vendor may collect or otherwise have access due to Vendor's relationship with UWM or an Affiliate that relates to an individual. This includes, but is not limited to, financial information; medical or health related information; credit history; income; financial benefits; application, loan or claim information; names or lists of individuals derived from nonpublic personally identifiable information or otherwise derived from UWM or an Affiliate; and the identification of an individual as a UWM customer or as an individual UWM claimant. Consumer Information will be protected in accordance with this Agreement.
- "Deliverables" means Goods and/or Services.
- "Developed Software" means any and all Technology and inventions, discoveries, improvements, concepts, ideas or developments capable of containing Intellectual Property Rights as well as improvements and/or derivatives thereto or know-how related thereto that Vendor (or Vendor's Agents) solely or with UWM, may develop or reduce to practice in the process of performing Deliverables pursuant to (or in anticipation of) the Agreement, not including any and all UWM Technology, UWM Confidential Information, and Vendor Technology.
- "Discloser" is the Party disclosing Confidential Information.
- "Force Majeure Event" is any failure or delay by UWM or Vendor in performing its obligations under the Agreement provided that such failure or delay could not have been prevented by reasonable precautions and cannot reasonably be avoided by the non-performing Party through the use of alternate sources, work-around plans or other means including but not limited to Vendor’s obligations to meet its business continuity and disaster recovery plans, to the extent the failure or delay is caused by flood, earthquake, elements of nature or acts of God, acts of war, pandemic, epidemic, terrorism, riots, civil disorders, rebellions or revolutions, court order or any other similar cause beyond the reasonable control of such Party and without the fault or negligence of the Party.
- "Illicit Code" is any program containing malicious or detrimental hidden files, any virus, malware or any other malicious computer program, any hardware-limiting, Software-limiting or Services-limiting function not part of standard configuration (including any key, node lock, time-out or other similar functions) or containing any automatically replicating, transmitting or activating computer program not part of normal function of the program.
- "Indirect Damages" means any indirect, incidental, special, consequential, punitive or exemplary damages or amounts for loss of income, profits or savings relating to a Party's performance or failure to perform under the Agreement.
- "Intellectual Property Rights" are all patents, patent applications, inventions, designs, mask works, processes, methodologies, copyrights and copyrightable works, trade secrets including Confidential Information, data, designs, manuals, training materials and documentations, formulas, knowledge of manufacturing processes, methods, prices, financial and accounting data, products and product specifications and all other intellectual property rights as these terms are understood under United States Law, including any modifications, adaptations, adjustments, enhancements, updates, improvements, alterations and error corrections thereto and other derivative works thereof.
- "Key Employees(s)" are the employees of Vendor and Vendor Agents who UWM and Vendor designate as fundamental to UWM's account.
- "Law" is any directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction of or by any governmental body.
- "Parties" are both UWM and Vendor, and UWM and Vendor may be individually referred to as a "Party".
- "Recipient" is the Party receiving Confidential Information.
- "Software" is the source code and object code versions of any programs, operating system software, computer software languages, utilities and other computer programs (i.e., any set of statements or instructions to be used in a computer to obtain a result), and related documentation and supporting materials, in any form or media, used to provide the Deliverables, including the tangible media upon which the programs, operating system software, computer software languages, utilities and other computer programs, and documentation and supporting materials are recorded or printed, together with all corrections, improvements, updates and releases.
- "Start Date" means the earlier of the first delivery or performance of any Deliverable or the date of the Purchase Order issued by UWM.
- "Taxes" are any value-added, country or local sales, use or similar taxes assessed by any taxing authority, and any telecommunications excise taxes, except taxes on net income of a Party.
- "Technology" means algorithms, concepts, data, designs, developments, documentation, discoveries, HTML, XML and other codes, interfaces, inventions, methods, multimedia files (including audio, graphic, photographic, and video files), object code, procedures, programs, source code, text, documentation, web pages and any other item generally recognized as technology in Vendor's or UWM's industry.
- "Termination Assistance Period" is defined as the period of up to twelve (12) months, or as otherwise described in this Agreement, for the orderly transition of the Services to UWM or another vendor of UWM, beginning upon the expiration of the Agreement or the notice date of termination of the Agreement.
- "Termination Assistance Plan" is the written methodology and approach, including deliverables and timelines, that Vendor will use to deliver Termination Assistance Services during the Termination Assistance Period.
- "Termination Assistance Services" are any previous Services which were provided by Vendor and any new services that UWM may require to transfer the affected Services to UWM or an Affiliate, including, providing to UWM or third party personnel training in the performance of the affected Services.
- "Third Party Service Provider(s)" means those third parties that require access to or use of the Deliverables, Services and/or Software in order to provide services and/or products to UWM and Affiliates.
- "UWM Agents" means UWM's employees, consultants, subcontractors, Affiliates, agents and representatives.
- "UWM Data" is all data and information that UWM submits to Vendor or that otherwise comes into Vendor's possession in providing Deliverables, and includes UWM Confidential Information.
- "UWM Systems" means any UWM computers, equipment, systems, applications, or UWM's computer network.
- "Vendor" means the other party identified in a Purchase Order.
- "Vendor Agents" means Vendor's employees, consultants, subcontractors, agents and representatives that are performing on behalf of Vendor under this Agreement.
- "Vendor Property" means all ideas, concepts, know-how, techniques and processes of a general nature, that are discovered, invented, created, conceived, made or reduced to practice by Vendor (a) prior to performing Services; or (b) on or after performance of the Services, provided that (i) such Vendor Property is not a Deliverable under this Agreement and was not developed specifically for UWM; and (ii) such Vendor Property is not based on or derived from UWM Confidential Information.
- "Work Product" is (i) all Intellectual Property Rights created, developed or prepared, documented and/or delivered by Vendor, in providing the Deliverables, including all changes to UWM Confidential Information and UWM Software and all manuals, training materials and documentation relating to such Software; and (ii) Developed Software (including all related Intellectual Property Rights); but in each case, excluding the skill and knowledge of Vendor's employees and Vendor Agents.
- PURCHASE OF GOODS AND SERVICES.
- Acceptance and Precedence of Terms: Vendor's agreement to furnish, or commencement of performance with respect to, the Deliverables constitutes Vendor's unqualified acceptance of the Agreement. Except as otherwise set forth above, the Agreement will control over any additional, inconsistent or conflicting terms of any purchase order, quotation, confirmation, invoice, acknowledgement, release, or other written correspondence, even if accepted in writing by both parties. Any additional or different terms are deemed material alterations which are expressly objected to and rejected.
- Provision of Deliverables: Subject to the terms and conditions set forth in the Agreement, Vendor will provide Deliverables to UWM as specified in the Purchase Order.
- Change Orders. At any time before any portion of the Deliverables are provided or performed, as applicable, UWM may, by written request, in whole or in part (i) suspend its purchase of Deliverables, or (ii) make changes in: (w) the quantities, scope, or Delivery Date, as defined below, of the Deliverables, (x) the applicable drawings, designs, or specifications of the Deliverables, (y) the method of shipment or packing of the Goods, or (z) the place of delivery of the Goods or provision of the Services. If such a change causes an increase in the cost, or the timing required for Vendor's performance, of the Deliverables and Vendor immediately notifies UWM in writing, then the price and delivery schedule of the Deliverables corresponding to such changed portion of the Deliverables shall be equitably adjusted as the parties may mutually agree, and the parties shall modify the Purchase Order accordingly in writing. Any such requested adjustment must be made by Vendor in writing no later than five (5) days from the date of Vendor's receipt of UWM's notification of change; failure to do so shall be deemed as acceptance by Vendor of such adjustment with no pricing adjustment to the Agreement. Nothing in this subsection is intended to excuse Vendor from performing pursuant to the Agreement, as changed or amended.
- Acceptance. UWM's acceptance of Deliverables will be in accordance with the acceptance criteria set forth in the Purchase Order, if any. If there is no such criteria, then, the Deliverables shall be deemed to have been accepted by UWM if UWM has not notified Vendor of any non-conformance associated with the Deliverables within thirty (30) days of receipt or completion of the applicable Deliverable. UWM's payment to Vendor for Deliverables will not be deemed Vendor's acceptance of the Deliverables. UWM shall have the right to reject Services and/or Deliverables based upon Vendor's non-compliance with any term of this Agreement, including, without limitation, a breach of any of the representations and warranties set forth herein. This remedy will be cumulative of and is in addition to any other remedies provided herein or existing at Law or in equity.
- Return; Re-Performance. UWM has the right, at Vendor's own risk and expense (including, without limitation, transportation and insurance charges), to: (i) have Vendor re-perform the Services or return the Goods that do not meet the warranties specified herein or in the Agreement; or (ii) return the Goods that constitute over-shipments or early or late shipments by Vendor. In the event of any such return of the Goods or refusal by Vendor to re-perform the Services, then at UWM's option: (x) Vendor shall promptly reimburse UWM for the cost of any such Goods or Services paid by UWM at UWM's request, or (y) UWM may offset the costs paid for such returned Goods or non-conforming Services against any amounts due to Vendor.
- Set-up, Take-Down Curfews for Services. The performance of Services must be made in accordance with any set-up and take-down curfews specified in the Agreement, as may be subsequently modified in writing by UWM.
- Non-Exclusivity: Notwithstanding anything stated to the contrary in the Agreement, Vendor agrees that (a) this is not a requirements contract and UWM will not be required to obtain its requirements for any of the Deliverables from Vendor; (b) Vendor is not the exclusive provider to UWM for Deliverables and UWM may at any time, itself, and/or through a third party(ies), provide and/or obtain any Goods and/or Services; and (c) UWM is not obligated to obtain Deliverables from Vendor for UWM or any Affiliates.
- Use by and for Affiliates: Affiliates and their respective employees and Third Party Service Providers are entitled to use the Deliverables, Services and/or Software in accordance with this Agreement and are entitled to all rights, benefits, and protections granted to UWM pursuant to this Agreement with respect to such Deliverables, Services and/or Software. UWM is responsible for compliance by Affiliates with the terms and conditions set forth in this Agreement.
- Use by Third Party Service Providers: Vendor acknowledges UWM's reliance on Third Party Service Providers throughout its environment, including the environment in which the Deliverables, Services and/or Software are to be used. Vendor acknowledges that Third Party Service Providers have all rights to access and use the Deliverables, Services and/or Software as are granted to UWM under this Agreement, solely to the extent necessary to support the business operations of UWM and Affiliates, without any further notification or accounting to Vendor. UWM is responsible for compliance by such Third Party Service Providers with the terms and conditions set forth in this Agreement.
- Charges: For all the Deliverables and other obligations to be provided and performed by Vendor pursuant to the Agreement, Vendor shall be paid the sum set forth in the Purchase Order as modified or amended from time to time in accordance with these Terms and Conditions (the "Cost of Deliverables").
- Invoices: Invoices shall: (a) be submitted no later than the 20th day of each month covering the Deliverables provided in the previous calendar month, (b) be submitted no more frequently than monthly, and (c) either be: (i) emailed to payables@UWM.com, or (ii) mailed to UWM's business address to the attention of Accounts Payable. Each invoice shall identify the applicable Purchase Order date and/or number and will contain detailed entries describing the Goods or Services provided, the date, the dollar amount, and the timekeeper and amount of time billed (if applicable). Vendor shall submit such documentation as may be required by UWM to substantiate the payment requested. Payment for the undisputed portion of the Cost of Deliverables shall be payable within thirty (30) days of UWM's receipt of the invoice and such additional documentation requested by UWM (as applicable).
- Expenses: Except for pre-approved expenses for travel, all expenses relating to the Deliverables are included in the Cost of Deliverables and will not be reimbursed by UWM unless otherwise agreed to by UWM in writing. Vendor will comply with UWM's travel guidelines. If UWM agrees to reimburse Vendor for any out-of-pocket expenditures, the actual costs will be passed through to UWM with no markup.
- Disputes: In the event of a good faith dispute regarding payment due to Vendor for the Deliverables: (i) UWM shall advise Vendor of the portion of the Cost of Deliverables disputed and its reason(s) therefor, (ii) UWM shall pay to Vendor the undisputed amount due, (iii) Vendor shall not suspend or withhold the Deliverables, or terminate the Agreement, and (iv) the parties shall endeavor to resolve such dispute within thirty (30) days of UWM's notice to Vendor of the disputed amount. Any payment by UWM is without prejudice to its right to contest the accuracy of any Cost of Deliverables.
- Taxes: The Cost of Deliverables incudes all Taxes related to the Deliverables. Except for those Taxes noted herein, no extra charges of any kind, including, without limitation, transportation charges, will be allowed unless agreed to in writing by UWM prior to the performance of the Deliverables. UWM will pay all sales, excise, or use Taxes due on the transactions hereunder or provide Vendor customary proof that the transactions are exempt from sales Taxes. Invoices will separately identify any Tax and will include either Vendor's sales Tax or use Tax permit number. Vendor will pay any other Taxes and charges, including, without limitation, taxes on net income of Vendor such as a franchise, gross receipts, capital, or a similar tax that is based or assessed on net profit or loss, assessments or fines arising from Vendor's performance of the Deliverables under the Agreement, or penalties or fees imposed due to failure to file or pay collected sales or use Taxes, failure to verify taxability of a purchase, or failure to calculate or remit Taxes in a timely manner.
- TERM AND TERMINATION.
- Term: These Terms and Conditions will commence on the Start Date and will continue for a period of twelve (12) months, unless sooner terminated pursuant to this Section 4 or the terms of the Purchase Order (the "Initial Term"). Thereafter, these Terms and Conditions will automatically renew for successive twelve (12) month periods upon the same terms (each, a "Renewal Term"), unless UWM or Vendor gives written notice of its election not to renew at least ninety (90) days prior to the end of the then current Term or sooner terminated pursuant to this Section 4. The Initial Term and all Renewal Terms are referred to collectively as the "Term". The Purchase Order may set forth the dates and periods that the Goods shall be delivered, and Services shall be provided, to UWM.
- Termination for Convenience: UWM may terminate the Agreement at any time, in its sole discretion, upon thirty (30) days' prior written notice to Vendor of such election.
- Termination for Default: (a) UWM may immediately terminate the Agreement if Vendor is then in breach of its obligations under the Agreement by providing written notice to Vendor of such election. (b) If either Party becomes or is declared insolvent or bankrupt, is the subject of any proceedings relating to its liquidation or insolvency or for the appointment of a receiver for it, makes an assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations, then the other Party may, by giving written notice thereof to such Party, terminate this Agreement as of a date specified in such notice of termination. (c) If any of the insurance coverage or policies required to be maintained by Vendor under this Agreement is terminated, lapses or for any reason does not remain in full force and effect, or any such coverage or policy is replaced or materially modified without the prior written consent of UWM, then UWM may, by giving written notice thereof to Vendor, terminate this Agreement upon the date specified in the notice, which date may be the date of the notice. (d) If Vendor or its employees appear on or are members of any organization that appears on any governmental watch list, including, but not limited to, the Control List prepared by the Office of Foreign Assets Control of the Department of the Treasury, then UWM may take all measures authorized under applicable Law and may, by giving written notice thereof to Vendor, terminate this Agreement upon the date specified in the notice, which date may be the date of the notice.
- Effect of Termination: If the Agreement is terminated, UWM shall only be responsible for reimbursing Vendor for its documented, actual direct costs expended or incurred by Vendor prior to the termination date in accordance with the terms of the Agreement, and Vendor shall promptly reimburse UWM for any payment made that covers a period following the termination date.
- Termination Assistance: In connection with the termination or expiration of this Agreement for any reason, and notwithstanding any dispute between the Parties, Vendor will provide to UWM Termination Assistance Deliverables for the Termination Assistance Period or as otherwise agreed upon between UWM and Vendor as follows: (a) Applicable Requirements and Access. At no additional cost, Vendor will provide to UWM and any designated Third Party Service Provider in writing, to the extent available, applicable requirements, standards, policies, operating procedures and other documentation relating to the affected Deliverables; (b) Development of Termination Assistance Plan. If requested by UWM, at Vendor's expense, Vendor will assist UWM and its designated Third Party Service Provider in developing a Termination Assistance Plan; (c) Comparable Prices. Vendor will provide the Termination Assistance Services during the Termination Assistance Period, including prices no worse to UWM than those for comparable Services prior to termination; (d) Post-Termination Assistance Period. For up to three (3) months after the Termination Assistance Period at no charge to UWM, Vendor will answer all reasonable and pertinent verbal or written questions from UWM regarding the Deliverables on an "as needed" basis as agreed to by UWM and Vendor, and deliver to UWM any remaining UWM-owned reports and documentation still in Vendor's possession; and (e) Absolute Obligation. Vendor agrees that it has an absolute and unconditional obligation to provide UWM with Termination Assistance Services, and Vendor's quality and level of performance during the Termination Assistance Period will continue to adhere to the requirements in the Agreement and Statements of Work.
- Divested Entities: In the event part of UWM is sold or otherwise divested ("Divested Entity"), Vendor will, at UWM's request, provide all or part of the Deliverables to such Divested Entity, and the Deliverables will then be provided to such Divested Entity and the Divested Entity will agree in writing to accept the terms and conditions set forth in this Agreement or such other terms as mutually agreed between the Parties. Any assignment of this Agreement in accordance with this Section 4.5 will be at no additional charge to UWM or Divested Entity, and UWM will have no further liability or responsibility.
- SHIPMENT AND DELIVERY.
- Timing. The shipment of Goods or performance of Services, as applicable, must be made in accordance with the time frame(s) specified in the Purchase Order, unless subsequently modified in writing by UWM. Time is of the essence in Vendor's performance of its obligations. In the event of a delay in delivery, Vendor shall immediately notify UWM. UWM shall then have the option of canceling all or part of the Deliverables without liability. UWM's acceptance of Vendor's notice does not constitute a waiver of Vendor's obligations.
- Terms. Shipments of the Goods shall be made by Incoterms 2010 Delivered Duty Paid (DDP) to UWM's business address at 585 South Boulevard East, Pontiac, MI 48341, or at such other location as directed by UWM or set forth in the Purchase Order. Vendor assumes the risk of, and shall be responsible for, any loss or damage to the Goods until the Goods are accepted by UWM at the named place.
- Incorrect Delivery. At UWM's option and Vendor's risk and expense, UWM may store incorrect deliveries of Goods for a reasonable amount of time, or reject such Goods and return them to Vendor. Incorrect deliveries are Goods that are delivered: (i) in excess of the amounts stated in the Purchase Order issued; (ii) more than three (3) business days prior to the delivery date required under the Purchase Order issued ("Delivery Date"); or (iii) after the Delivery Date.
- Packing. Vendor shall preserve, pack, package and handle the Goods to protect them from loss or damage pursuant to UWM's specifications (if any) and otherwise in accordance with good commercial practices and industry standards. Vendor shall be liable for, and shall promptly refund to, UWM the amount of any loss or damage due to Vendor's failure to properly preserve, pack, and package or handle such Goods. Vendor shall include with each shipment of Goods an itemized packing list that states the Purchase Order number, product numbers, a description and the quantity of each Goods shipped and the date of shipment. Vendor shall make the Purchase Order number (if any) plainly visible in every invoice, package and bill of lading.
- FUTURE ACQUISITIONS. If during the Term, UWM acquires control of an entity ("Acquired Entity") under an existing contract with Vendor covering or relating to the subject matter of this Agreement, UWM, at its option, may (a) keep the Acquired Entity's existing contract in effect until the date of termination of the existing contract, after which, such Acquired Entity may receive the benefits of the Agreement; (b) immediately cancel such existing contract after which, such Acquired Entity may receive the benefits of the Agreement; or (c) assume the better of the contracts.
- REPRESENTATIVE AND WARRANTIES.
- Vendor and UWM each represent and warrant to the other that the execution, delivery and performance of this Agreement by such Party (a) has been duly authorized by all necessary corporate action; (b) does not conflict with, or result in a material breach of, the articles of incorporation or by-laws or other operating document of such Party, and any material agreement by which such Party is bound, or any Law, regulation, rule, judgment or decree of any governmental instrumentality or court having jurisdiction over such Party; and (c) constitutes a valid and legally binding obligation of such Party enforceable in accordance with its terms.
- Vendor is free to enter into the Agreement and is not party to or otherwise bound by any contracts, restrictive covenants, or any other contracts preventing full performance of its duties.
- Vendor shall observe UWM's rules as the same are disclosed to Vendor, including without limitation, those rules involving health, safety, the environment, and security, when working at or around UWM's property.
- Vendor is financially solvent and possesses sufficient experience, authority, and working capital to perform and complete the obligations under the Agreement in a timely manner.
- Vendor is not bound by the terms of any agreement with any other party to refrain from using or disclosing any trade secret or confidential or proprietary information that may be used in the course of performing the Services or to refrain from competing, directly or indirectly, with the business of any such third party.
- The Deliverables sold and/or performed by Vendor, as applicable, pursuant to the Agreement shall: (i) be of a professional quality and performed in a professional manner, (ii) be free from any defects in design, materials and workmanship, (iii) comply in all respects with any specifications, drawings, samples, or other descriptions set forth in the Purchase Order, or later communicated to Vendor, and shall otherwise be fit for the purpose intended and merchantable, (iv) be free from all liens, encumbrances, and rights of third parties, (v) not violate any Intellectual Property Rights of any third party, (vi) be in full compliance with all applicable Law, including but not limited to all applicable Federal consumer laws and regulations, (vii) not include any Illicit Code. Without prejudice and in addition to any other of UWM's rights, UWM shall be entitled to require Vendor to replace or re-perform any of the Deliverables (including any replacement Deliverables) that fail to comply with this subsection or, at UWM's option, to require Vendor to refund to UWM the price paid for such Deliverables. If Vendor fails within a reasonable period to replace any of the Deliverables in accordance with this subsection, UWM shall be entitled to the following remedies (without prejudice to any other of its rights or remedies): (x) rectifying such defect on behalf of Vendor and in connection therewith, UWM shall be entitled to reimbursement by Vendor for all costs so incurred, (y) offsetting the price paid for such Deliverables or rectification of Deliverables against any amounts that may be owed to Vendor under the Agreement, or (z) a full refund for any amount paid for the applicable Deliverables. The warranties set forth in this subsection shall be for a period of two (2) years commencing upon completion of delivery of the Goods or performance of the Services, as applicable, in the manner required under Agreement, and shall survive any expiration or termination of the Agreement.
- Vendor has, and will maintain throughout the Term of this Agreement, all licenses, franchises, permits, authorizations and approvals materially necessary for the lawful conduct of its business.
- SECURITY AND USE OF UWM'S SYSTEMS. When Vendor is performing Services on UWM's premises, Vendor will comply with UWM's security, safety, and fire protection procedures. If Vendor is given a key, code, combination or other access device to UWM's premises, Vendor will: (a) safeguard it with the same degree of care as Vendor safeguards keys to its own premises, but in no event with less than reasonable care; (b) account for all keys and access devices whenever requested to do so by UWM; (c) maintain a log and provide copies to UWM of the names of personnel and times when they have possession of such keys or access devices and immediately notify UWM of any change to such personnel; and (d) return all such keys and access devices immediately upon request by UWM. UWM will have the right to inspect the contents of all containers or packages being brought into or removed from UWM's locations. While at any UWM location or if Vendor or Vendor Agents are given access to any UWM Systems, Vendor and Vendor's Agents will follow all reasonable directions and instructions given by UWM and use of UWM Systems will be only to the extent necessary to perform the Services hereunder. For Vendor Agents that have access to UWM Systems, such Vendor Agents shall read and confirm his/her compliance with UWM's Acceptable Use Policy pursuant to UWM's affirmation requirements. UWM may monitor such use of the UWM Systems. In the event UWM, in its sole discretion, determines that Vendor failed to comply with this provision, UWM may immediately terminate this Agreement for default or take such action as it deems appropriate, and UWM's sole liability will be for payment of Services already rendered.
- PERFORMANCE AND PERSONNEL.
- Key Employees: UWM and Vendor will designate Key Employees who will be dedicated to UWM's account. Vendor will not reassign or replace any Key Employee (a) for twelve (12) months after being designated as a Key Employee; (b) during the Termination Assistance Period; or (c) for Key Employees who are identified by a UWM contract manager as important to the Deliverables, prior to completion of the Deliverables in the discretion of UWM, except for: (i) replacement or reassignment of a Key Employee with UWM's written consent; (ii) Key Employee's voluntary resignation from Vendor; (iii) dismissal of Key Employee by Vendor for misconduct (e.g. fraud, drug abuse, theft) or unsatisfactory performance, as determined by Vendor; or (iv) inability of Key Employee to work due to sickness or disability, or any relevant labor or employment legislation, or following the termination or expiration of any Purchase Order.
- Personnel: Vendor will provide UWM with a contact list for servicing needs containing the names, telephone and fax numbers, mobile numbers, e-mail or Internet addresses for Vendor and Vendor Agents and such other information as UWM may reasonably request. Upon the request of UWM, Vendor will reassign or otherwise arrange so that a particular Vendor Agent does not work at any UWM location or perform Deliverables hereunder. UWM may require that Vendor submit any and all Vendor Agents to be assigned in connection with the performance of Deliverables hereunder to a screening process, including, but not limited to, employment eligibility verification and criminal background investigation. Vendor represents that all such investigations, inquiries, or tests required by UWM will be conducted with the knowledge and consent of the Vendor Agents involved, and in compliance with all applicable state and federal Laws and regulations. In addition to any criminal background checks that UWM may require pursuant to the foregoing, it is mandatory for Vendor to conduct, and document in Vendor's files, a criminal background check for Vendor Agents performing Deliverables for UWM who has key or card key access to UWM's premises. The background check must take place prior to such individual beginning to perform Deliverables on UWM's premises or on UWM Systems. The background check should be conducted in accordance with UWM's current policies. Vendor will take appropriate measures to select, supervise and monitor the Vendor Agents performing Deliverables. Vendor will maintain current employment eligibility verification records, including necessary certification and documentation and insurance for all Vendor Agents performing Deliverables hereunder. Vendor will not conduct disciplinary actions with respect to Vendor Agents while on UWM's premises, including, but not limited to, terminating employment of Vendor Agents.
- Independent Contractor Status: The Deliverables of Vendor are to be rendered as an independent contractor. Vendor and Vendor Agents will not be, or represent themselves to be, officers, employees, agents or representatives of UWM and will not bind, or attempt to bind, UWM to any agreement, liability or obligation of any nature. Vendor Agents will not be considered employees of UWM within the meaning or application of any federal, state, or local Laws or regulations. Vendor will be responsible for the payment of wages, salaries, and other amounts due to Vendor Agents in connection with the Deliverables performed hereunder, and will be responsible for all payroll reports and obligations, including, but not limited to, withholding, social security, unemployment insurance, workers' compensation, immigration and naturalization, and similar items.
- Work for Hire: UWM has all right, title and interest, including worldwide ownership of all Intellectual Property Rights, in, to and under Work Product and all copies. All Work Product will be "Works Made for Hire" under Title 17 of the United States Code as it may be revised and amended from time to time and will be solely and exclusively owned by UWM. Vendor hereby irrevocably assigns and will cause Vendor Agents to irrevocably assign to UWM, without further consideration, all rights and titles to the Work Product. Vendor acknowledges that UWM and the assigns of UWM will have the right to obtain and hold in their own name the Work Product and Vendor agrees to execute any documents or take any other actions necessary to perfect UWM's ownership in the Work Product. Vendor agrees to indemnify, waive and release UWM against any third-party liens on the Work Product. Vendor will not embed any third party software or property in the Work Product without UWM's consent.
- License to Vendor Property: Vendor Property is excluded from the Work Product. As part of the consideration tendered by UWM to Vendor for any Purchase Order, Vendor grants to UWM a fully-paid, royalty-free, irrevocable, perpetual, unlimited, worldwide, non-exclusive license to the Vendor Property to use, execute, perform, display, reproduce, transfer, modify, and create derivative work of such Vendor Property as part of or in connection with the Purchase Order. Except as set forth herein, all right, title and interest in Vendor Property remains with Vendor.
- Source Code Escrow: At no additional cost to UWM, Vendor agrees to establish a third-party escrow account and deposit any source code for the Software determined by UWM to be required. Vendor also agrees to name UWM as a beneficiary in its Software escrow agreement within thirty (30) days of the Start Date. The deposit account for the underlying Software escrow agreement will contain all of the components necessary for UWM's designee to recreate a live production environment, similar in form, performance and functionality to the Software being delivered by Vendor. To the extent that they exist, deposit account elements include but not limited to the Vendor's object code (application executable), access instructions to any third party utilities, a description of the hardware infrastructure as well as runtime build instructions and the beneficiary's data (according to the agreed upon recovery time/point objectives). The escrow agreement shall authorize the escrow agent to release the object code, the data and the source code and any other materials in the deposit account to UWM in the event of a Release Event, as defined below, and allow UWM to verify the accuracy and completeness of the deposit. In the event of any conflict between the escrow agreement and this Agreement, the terms of this Agreement shall govern. Furthermore, Vendor shall inform the escrow agent of the terms of this Section 10. The Parties agree that the escrow agreement identified in this Section should be considered supplementary to this Agreement, in accordance with the terms of 11 U.S.C Section 365(n).
- Release Event: If Vendor (a) is subject to voluntary or involuntary bankruptcy; (b) suffers a failure to do business in the ordinary course or function as an ongoing concern; (c) ceases to provide the Deliverables (or fails to appoint a third-party designee acceptable to UWM); (d) breaches this Agreement; or (e) meets any of the release conditions defined in the Software escrow agreement (each a "Release Event"), then Vendor or the escrow agent will provide to UWM within fourteen (14) days of UWM's request one (1) copy of the most current version of the source code for the Software and all necessary information to allow UWM to recompile, modify, maintain, and enhance the Software without the aid of Vendor. In order to ensure compliance with the foregoing, Vendor will promptly and continuously update and supplement the source code as necessary with all revisions, corrections, enhancements, and other changes that Vendor has developed for the Software. The governing license includes the right to use the source code version of the Software received under this Section as necessary to enhance, maintain, create derivative works, and otherwise modify the Software.
- Assistance in Enforcement: Vendor agrees to provide all assistance reasonably requested by UWM in the establishment, preservation and enforcement of UWM's copyright, trademark, trade secret, and any other proprietary interests in the Work Product, including executing documents, testifying, and all similar activity.
- DAMAGES RELATING TO CLAIMS BETWEEN PARTIES.
- Neither Party will be liable for, nor will the measure of damages include, any Indirect Damages.
- The exclusion of Indirect Damages set forth in Section 11.1 will not apply to (i) liability resulting from the gross negligence, recklessness, or willful misconduct of Vendor or its employees, consultants, subcontractors, agents and/or representatives; (ii) a breach of Vendor's confidentiality, data protection and security obligations by Vendor or its employees, consultants, subcontractors, agents and/or representatives; and (iii) Vendor's indemnification obligations. Under no circumstances shall UWM be liable for Indirect Damages.
- The following are direct damages and Vendor will not assert that they are Indirect Damages if they result from the breach of any terms of this Agreement:
(a) costs and expenses of recreating or reloading any of UWM's lost, stolen or damaged information;
(b) costs and expenses of implementing a work-around for Vendor's or Vendor Agents' failure to provide all or a portion of the Deliverables or any part of the Deliverables;
(c) costs and expenses of replacing lost, stolen or damaged hardware, Software, and materials;
(d) costs and expenses incurred by UWM to correct errors in Software, Software maintenance and enhancements to the Software;
(e) costs and expenses incurred by UWM to obtain from an alternate Vendor or perform itself, all or any part of Deliverables the performance of which are Vendor's obligations, if it results in excess charges;
(f) straight time, overtime or related expenses, including overhead allocations for UWM's employees, wages for additional employees, travel expenses, overtime expenses, telecommunications charges and similar charges, due to Vendor's failure to provide all or a portion of the Deliverables; and
(g) costs and expenses of UWM obtaining credit monitoring services and identity theft protection services in the event of any unauthorized access, possession, disclosure, use, or other security breach involving UWM Data; and
(h) fines, penalties, or other charges resulting from any of the above or any failure of the above.
- Vendor Indemnity: Vendor will indemnify, defend and hold harmless UWM, its directors, members, officers, employees, affiliates, representatives and agents ("UWM Indemnified Party(ies)") from all
Claims, damages, liabilities, costs and expenses, including actual, out-of-pocket reasonable attorneys' fees and expenses, relating to:
(a) the death or personal injury of third parties, including invitees or employees of the UWM Indemnified Party, in any way resulting from the negligent or willful acts or omissions of Vendor or any of its employees, consultants, subcontractors, agents and/or representatives;
(b) the damage or destruction of real or tangible personal property of the UWM Indemnified Party or third parties, including invitees or employees of the UWM Indemnified Party, in any way resulting from the negligent or willful acts or omissions of Vendor or its employees, consultants, subcontractors, agents and/or representatives;
(c) Deliverables, Software, data or any other items provided by Vendor to the UWM Indemnified Party under this Agreement infringing upon or misappropriating the proprietary rights of any third party (except as may have been caused by a change by the UWM Indemnified Party or use of such Deliverables, Software, data or programs without authorization or consent of Vendor);
(d) Claims asserted by any employee or former employee of Vendor, attributable to any period while the employee was employed by Vendor and arising out of Vendor's employment of the employee, including Claims for (a) a violation of Law for persons of a protected class by Vendor, including unlawful discrimination, (b) any work-related injury or death caused by Vendor, except if the Claim can be covered by workers compensation coverage, (c) accrued employee benefits not expressly provided for by Vendor, (d) any representations, oral or written, made by Vendor to UWM's employees, and (e) any other aspect of the employees' employment relationship with Vendor or the termination of the employment relationship (including Claims for breach of an employment contract).
(e) any of the following: (i) any liability of UWM arising out of Vendor's failure to comply with any relevant data protection or privacy Laws and regulations in any jurisdiction where Deliverables are being provided or which data is being transported/transmitted or UWM's failure to comply to the extent that such failure was caused by Vendor's negligent acts or omissions; (ii) Vendor's failure to implement physical or data security controls imposed by this Agreement; (iii) Vendor's failure to comply with the obligations set forth in Section 10, Ownership; and (iv) Vendor's breach of the terms of this Agreement.
- Indemnification Procedures:
(a) If a Claim is commenced against a UWM Indemnified Party under this Agreement, written notice will be provided to Vendor as promptly as practicable by UWM Indemnified Party, provided, however, that the failure to provide such notice shall not relieve Vendor of its obligations under this Section 12, except to the extent that such failure materially prejudices Vendor's defense of such claim. After notice, the Vendor will be entitled, but not obligated, at its discretion, to immediately take control of the defense and investigation of the Claim and employ attorneys of its sole choice to handle the Claim, at Vendor's sole expense. The UWM Indemnified Party will cooperate with the Vendor and its attorneys in the investigation and defense of the Claim and any potential appeal; provided, however, that the UWM Indemnified Party may, at its own expense, participate in the investigation and defense of the Claim and any potential appeal. No settlement of a Claim that involves a remedy other than the payment of money by the Vendor will be entered into without the written consent of the UWM Indemnified Party. After notice by the Vendor to the UWM Indemnified Party of its intent to assume full control of the defense of the Claim, the Vendor will not be liable to the UWM Indemnified Party for any legal expenses incurred directly by the UWM Indemnified Party.
(b) If the Vendor does not assume full control over the Claim as described in this Agreement, the Vendor may participate in the defense, at its sole expense, and the UWM Indemnified Party may defend the Claim in an appropriate manner, at the expense of the Vendor.
- Survival: The provisions of this Section 12 will survive the termination or expiration of this Agreement.
- Vendor Indemnity: Vendor will indemnify, defend and hold harmless UWM, its directors, members, officers, employees, affiliates, representatives and agents ("UWM Indemnified Party(ies)") from all Claims, damages, liabilities, costs and expenses, including actual, out-of-pocket reasonable attorneys' fees and expenses, relating to:
- INFRINGEMENT. If any Claim of infringement or misappropriation occurs, or if in UWM's and Vendor's jointly agreed opinion, any Software (other than UWM Software) is likely to become the subject of an infringement Claim, then UWM
will do either of the following:
- Right to Continue Use (UWM): UWM will, at Vendor's request, attempt to continue to use the Software on reasonable commercial terms, with the terms to be agreed to by Vendor. If the right to continue use of the Software is obtained, then Vendor will reimburse UWM for the costs associated with obtaining the continued right to use the Software.
- Right to Continue Use (Vendor), Modification or Substitution: If Section 13.1 does not apply either due to UWM's failure to obtain the right to continue to use the Software after reasonably diligent efforts or Vendor's reasonable failure to agree to the terms of continued use, then Vendor will (in its discretion): (a) obtain the right for UWM to continue to use the Software; (b) modify the Software so that it does not infringe but remains equivalent; or (c) substitute equivalent, non-infringing items for the Software, or substitute non-infringing items for the Software without material loss of functionality.
- INSURANCE. For and during the Term of this Agreement, Vendor will secure and maintain at its own expense insurance of the type and in the amounts set forth below:
- Workers' Compensation Insurance in accordance with all federal and state statutory requirements and Employer's Liability Insurance in an amount of not less than $500,000 per accident for bodily injury by accident and $500,000 per employee/aggregate for bodily injury by disease. Vendor and its underwriter will waive subrogation against UWM.
- Commercial General Liability Insurance in an amount of not less than $1,000,000 per occurrence, subject to a $2,000,000 aggregate limit covering bodily injury (including death), personal injury, property damage including, without limitation, all contractual liability for such injury or damage assumed by Vendor under this Agreement. This policy will cover liability arising from premises and operations, independent contractors, products/completed operations, personal and advertising injury, and blanket contractual liability.
- Commercial Automobile Liability Insurance in an amount of not less than $5,000,000 combined single limit covering bodily injury (including death) and property damage for all owned, hired and non-owned vehicles used by Vendor, including all statutory coverage for all jurisdictions of operation.
- Umbrella Liability Insurance with respect to Workers' Compensation, Commercial General Liability, and Commercial Automobile Liability in an amount of not less than $5,000,000 combined single limit.
- Blanket Crime Coverage including employee dishonesty covering liability against direct and verifiable losses of money, securities, products, equipment, material and other property of UWM caused by theft or forgery by identifiable employees of Vendor acting alone or in collusion with others, in an amount of not less than $1,000,000.
- Professional Errors and Omissions Liability Insurance appropriate to Vendor's profession. Coverage should be for a professional error, act or omission arising out of the scope of Deliverables set forth in this Agreement, in an amount not less than $1,000,000 per occurrence.
- UWM, its directors, officers, employees, agents, subsidiaries and affiliates will be named as additional insureds on the Commercial General Liability and Commercial Automobile Liability policies. All of the foregoing policies will be issued by insurance companies having an "A" rating by A.M. Best Company. These insurance provisions set forth the minimum amounts and scopes of coverage to be maintained by Vendor and are not to be construed in any way as a limitation or release of Vendor's liability under this Agreement or as a representation that coverage and limits will necessarily be adequate to protect Vendor. Vendor will not self-insure any of its obligations under this Agreement without full disclosure to UWM of its intention to self-insure and without obtaining UWM's prior written consent. Any and all deductibles specified in the above-referenced insurance policies will be assumed by, for the account of, and at the sole risk of Vendor. All policies of insurance procured by Vendor will be written as primary policies, not contributing with, nor in excess of coverage carried by UWM.
- Upon request from UWM, Vendor will furnish Certificates of Insurance evidencing all of the foregoing insurance coverage. All of the above-described policies will provide that no less than thirty (30) days prior written notice of cancellation, material modification, reduction in coverage or non-renewal will be provided to UWM. In the event that any Deliverables under this Agreement are to be rendered by persons other than the Vendor's own employees, Vendor will arrange for such persons to forward to UWM prior to commencement of Deliverables by them, Certificates of Insurance evidencing such amounts, in such form, and with such insurance companies as are satisfactory to UWM.
- DATA PROTECTION AND SECURITY.
- Protection of UWM Data: UWM Data will remain the property of UWM. Vendor acknowledges that UWM maintains control over UWM Data and will follow UWM's instructions on the creation, processing, amendment and deletion of UWM Data. UWM Data will not be: (i) used by Vendor other than in providing the Deliverables; (ii) sold, assigned, or otherwise provided to third parties by Vendor; or (iii) commercially exploited by or on behalf of Vendor. In addition to the obligations otherwise stated in this Agreement, Vendor will protect and ensure that all Vendor Agents protect Consumer Information. Vendor will not provide Consumer Information in any form to any third party (including any Vendor Agent) without UWM's prior written consent and Vendor will remain fully responsible for any such disclosure. Vendor will, at its own expense, promptly correct all errors in and damage to UWM Data and the reports delivered to UWM if caused by Vendor or Vendor Agents.
- Data Security:
(a) Safeguards: Vendor will maintain safeguards and take technical, physical and organizational precautions to ensure UWM Data against destruction, loss, alteration, unauthorized access by or disclosure to third parties while in the possession or under the control of Vendor and Vendor Agents. The objective of each such precaution will be to (i) ensure the security and confidentiality of Consumer Information, (ii) protect against any anticipated threats or hazards to the security or integrity of Consumer Information, and (iii) protect against unauthorized access to or use of Consumer Information that could result in substantial harm or inconvenience to any customer. These precautions will be consistent with UWM's corporate security practices, including the Information Security Policy and Standards, as updated from time to time. Vendor agrees to provide training in key Laws and regulations to all Vendor Agents whose duties pursuant to this Agreement could bring them in contact with Consumer Information. Vendor will provide training records, at UWM's request, that confirm to UWM that such Vendor Agents have been adequately trained in the subject Laws and regulations.
(b) Unauthorized Access to UWM Data:
(i) Detection and Response to Security Breaches: Vendor will maintain sufficient procedures to detect and respond to any unauthorized possession, disclosure, use, or other security breaches involving UWM Data.
(ii) Notification of Unauthorized Access: Vendor will, as soon as reasonably practicable, notify UWM of any unauthorized or attempted possession, disclosure, use or knowledge of UWM Data when it becomes aware of it, including any material breach or potential material breach of security, on a system, LAN or telecommunications network which contains or processes UWM Data.
(iii) Furnishing Details of Unauthorized Access: Vendor will, as soon as reasonably practicable, furnish to UWM full details of the unauthorized or attempted possession, disclosure, use or knowledge, and use reasonable efforts to assist UWM in investigating or preventing the recurrence of any unauthorized or attempted possession, use or knowledge, of UWM Data.
(iv) Cooperation: Vendor will cooperate with UWM to correct any unauthorized possession, disclosure, use, or other security breaches, and in any litigation and investigation deemed necessary by UWM to protect UWM's proprietary rights.
(v) Recurrence: Vendor will use all reasonable efforts to prevent a recurrence of any unauthorized possession, use or knowledge of UWM Data.
(c) Sites: In conjunction with UWM's audit rights set forth in Section 17, UWM Agents can access any Vendor site consistent with reasonable security provisions of Vendor and the following: (i) access to Vendor sites by UWM or UWM Agents may only be permitted with reasonable prior notice (specifying details of personnel who require access) during normal business hours and only to those Vendor sites where Deliverables are being provided; (ii) Vendor can deny access to UWM Agents (but not UWM), where in Vendor's opinion, UWM Agent is a competitor of Vendor; and (iii) access by UWM or UWM Agents must not adversely affect Vendor's performance of the Deliverables or Vendor's Deliverables to its other customers. Vendor will maintain data and physical security standards and procedures at each of the sites in which Deliverables are performed consistent with the Agreement.
- Standard of Care: Each Party will protect all Confidential Information of the other Party with the same degree of care as it uses to avoid unauthorized use, disclosure, publication or dissemination of its own confidential information of a similar nature, but in no event, less than a reasonable degree of care. Further, Vendor agrees that it will protect Consumer Information in accordance with the requirements of this Agreement.
- Restricted Disclosure: Each Party will not disclose, release, or otherwise make available to any third party, any Confidential Information of the other Party without the other Party's prior written consent. Further, Vendor agrees that it will not disclose, release, or otherwise make available to any third party, any Consumer Information without UWM's prior written consent. UWM and Vendor may disclose Confidential Information and Consumer Information of the other to UWM Agents and Vendor Agents, respectively, and each Party's accountants, attorneys, other agents, and its affiliates or subsidiaries (respectively, each Party's "Third Party Recipients") if reasonably necessary in performing its duties under this Agreement or, for UWM, its use and enjoyment of the Deliverables and the hardware and Software used to perform Deliverables, provided, however, that Vendor and UWM are each responsible for any violation of these confidentiality obligations by its Third Party Recipients and will ensure that these individuals or entities are aware of these confidentiality obligations.
- Confidential Information Exclusions: The obligations in this Section 16 will not restrict any disclosure of Confidential Information (except for Confidential Information that constitutes or reflects Consumer Information)
by the Recipient from the Discloser where the Recipient can demonstrate that such Confidential Information is exempt from the obligations set forth in this Agreement based upon the following. The burden of proof that Confidential Information
falls into any one of the following exemptions will be borne by the Party claiming such exemption:
(a) the Confidential Information was independently developed by the Recipient without the use of the Discloser's Confidential Information and without breach of the Recipient's confidentiality obligations under this Agreement;
(b) the Confidential Information becomes publicly known (other than through unauthorized disclosure by the Recipient or its employees, consultants, subcontractors, agents or representatives);
(c) the Confidential Information was already known to the Recipient prior to receiving it without any obligation of confidentiality;
(d) the Confidential Information was lawfully obtained or rightfully received by the Recipient without an obligation or duty of confidentiality from any third-party that has no duty or obligation of confidentiality to the Discloser with respect to such information;
(e) the Recipient becomes legally compelled (including by oral questions, deposition, interrogatory, request for documents, subpoena, civil investigative demand or similar process) to disclose any of the Confidential Information (in such case, the Recipient shall provide the Discloser with prompt prior written notice of such requirement so that the Discloser may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement); or by demand of auditors, examiners or regulators having or claiming to have jurisdiction over Recipient; provided that notwithstanding anything to the contrary contained herein, UWM may disclose Confidential Information to any governmental agency or regulatory body having or claiming to have authority to regulate or oversee any aspects of UWM's business without providing notice to Vendor; or
(f) Non-proprietary Know-How: Neither UWM nor Vendor will be prevented from using know-how experience gained of a non-proprietary and non-confidential nature.
- Return of Information:
(a) Return of Confidential Information: When this Agreement expires or terminates, each Party will return to the other Party all Confidential Information of the other Party disclosed and all copies, or at the other Party's option, destroy the Confidential Information and provide to the other Party certificates evidencing the return or destruction. Despite anything else stated in the Agreement, if this Agreement terminates for any reason, UWM (i) may retain one (1) copy of Vendor's Confidential Information solely for archival, audit, disaster recovery, legal and/or regulatory purposes and (ii) UWM will not be required to search archived electronic back-up files of its computer systems for Vendor's Confidential Information in order to purge Vendor's Confidential Information from its archived files; provided, however, that UWM must (i) maintain its confidentiality under this Agreement as if it were still in effect, and (ii) not use the retained Vendor's Confidential Information for any purpose other than as permitted herein.
(b) Return of Consumer Information: Vendor will implement and monitor procedures to comply with Fair and Accurate Credit Transactions Act of 2003 (Public Law 108-159, 111 Stat. 1952), as amended from time to time, and implement procedures concerning the safeguarding and disposal of Consumer Information. Vendor will return Consumer Information to UWM or destroy it, as instructed by UWM. If UWM directs Vendor to destroy the records and files containing Consumer Information, all such paper records will be shredded and all such electronic or digital records and files will be erased, or otherwise rendered unreadable, in a way that prevents the records and files from being practicably read or reconstructed. Vendor will promptly confirm to UWM in writing as to the destruction of said records and files. Upon request, Vendor will provide UWM all information that UWM reasonably requests regarding the disposal of records and files containing Consumer Information, including, but not limited to, such portions of the Vendor's information security policies and procedures as Vendor can provide without compromising the security of Consumer Information. Vendor will cause its employees, consultants, subcontractors, agents and/or representatives to comply with the provisions of this Agreement. Vendor accepts UWM's right to terminate the Deliverables immediately and with no indemnity by UWM if Vendor is found in violation of privacy or data protection Laws and/or the data protection and security obligations imposed by this Agreement.
(c) Return of UWM Data: Notwithstanding anything to the contrary contained herein, in no event shall UWM Data be deleted, destroyed, or archived without UWM's express, prior written consent. Upon expiration, non-renewal, rescission or termination of this Agreement or any Purchase Order for any reason, and notwithstanding Sections 16.4(a) and 16.4(b), Vendor will return all UWM Data and copies thereof (or destroy upon request by UWM) in a format mutually agreed upon by the Parties at no additional charge. If the Parties cannot agree on a format for the extraction of all UWM Data, Vendor shall provide such extraction in the same format that UWM used to transfer such UWM Data to Vendor.
- Survival: The provisions of this Section 16 will survive the termination or expiration of this Agreement.
- ACCESS AND AUDIT PROCEDURE. Vendor will provide UWM, UWM Agents, independent auditors, examiners, regulators and inspectors with access to, and any assistance and information that they need about the Deliverables, Software, and sites to enable UWM, UWM Agents, auditors, examiners, regulators and inspectors to: (i) examine all records and materials of Vendor and Vendor's Agents about the Deliverables; (ii) inspect Vendor's and Vendor's Agents premises; (iii) verify the security of UWM Data; (iv) examine the systems that process and store UWM Data; and (v) examine Vendor's performance of the Deliverables to enable UWM to confirm Vendor's compliance with the Agreement and the Law. At UWM's request, Vendor will furnish UWM, UWM Agents, auditors, examiners, regulators and inspectors with (x) an inventory of all Vendor's internal and external audit reports about the Deliverables, (y) the rating of each audit report, and (z) the rating schedule applicable to each audit report. Furthermore, Vendor will promptly notify UWM in writing of all material changes to Vendor's control environment or changes to or breaches of Vendor's security policies. Vendor will preserve for a period of six (6) years after the completion or termination of Deliverables under this Agreement all documents related to the Deliverables hereunder which will be made available to UWM at UWM's request. Further, Licensor shall timely and comprehensively respond to UWM’s periodic vendor assessments.
- DISPUTES. The parties hereby unconditionally and irrevocably: (i) submit to the jurisdiction of the Circuit Court for the County of Oakland, Michigan, or if original jurisdiction can be established to the United States District Court for the Eastern District of Michigan, Southern Division, City of Detroit, Michigan (the "Courts"), in any action arising out of or in any way relating to this Agreement; (ii) agree that all claims and any action may decided in either of the Courts; and (iii) waive to the fullest extent that they may effectively do so, the defenses of: (a) lack of subject matter jurisdiction of such Courts; (b) the absence of personal jurisdiction by such Courts over the parties hereto; and (c) forum non-conveniens. The parties agree that a final judgment in any such suit, action or proceeding brought in any such court shall be conclusive and binding upon the parties and may be enforced in any other courts to whose jurisdiction the parties are or may be subject by suit upon such judgment.
- FORCE MAJEURE. Upon the occurrence of a Force Majeure Event, UWM may deploy its own resources or contract for other assistance as necessary to cover for Vendor's failure, and UWM may reduce or eliminate Vendor's remaining work obligations in any manner. The occurrence of a Force Majeure Event does not limit Vendor's obligation to provide either normal recovery procedures or any disaster recovery services as defined in this Agreement to the extent practicable. The Party delayed by a Force Majeure Event will, as soon as practicable, notify the other Party by telephone (to be confirmed in a written notice within five (5) days of the inception of delay as a result of the Force Majeure Event) of the occurrence of a Force Majeure Event and describe in reasonable detail the nature of the Force Majeure Event. If any Force Majeure Event results in a failure to perform Deliverables which lasts for more than seven (7) days, UWM may, upon notice to Vendor cease payment of the Charges for the affected Deliverables (other than those already accrued and due under the Agreement) until the recovery from the Force Majeure Event has been completed and procure the affected Deliverables from an alternate source; or terminate the affected portion of the Deliverables as of a date specified by UWM.
- SUBCONTRACTS AND ASSIGNMENT. Vendor will not assign, in whole or part, any of its obligations under this Agreement without UWM's written consent. Vendor will not subcontract any portion of its performance obligations under this Agreement without UWM's prior written approval. UWM's approval with respect to any subcontracting will not relieve Vendor of its responsibility for the performance of its obligations under this Agreement, including, but not limited to, representations and warranties, indemnification, data protection and security, and confidentiality obligations. Vendor is responsible for all payments to, and Claims by, Vendor subcontractors relating to performance or nonperformance under this Agreement and Vendor will ensure that Vendor subcontractors comply with this Agreement.
- BUSINESS CONTINUITY AND DISASTER RECOVERY. In addition to what is otherwise in this Agreement, Vendor is responsible for the following minimum requirements for which Vendor will not charge UWM any additional charges. Vendor will (i) develop and continually update Vendor's business continuity and disaster recovery plans and submit such plans to UWM for its approval; (ii) participate in the testing and certification of Vendor's business continuity or disaster recovery plans then in effect upon UWM's request and at least once every twelve (12) months during the Term; (iii) as soon as practicable following the occurrence of a business interruption or a disaster affecting the Deliverables, provide UWM with written notice and implement Vendor's business continuity or disaster recovery plan, as applicable; (iv) use best efforts to reinstate the Deliverables as soon as practicable but in any event within any period of time set out in any agreement between Vendor and UWM; and (v) upon UWM's request, certify the business continuity and disaster recovery plans then in effect.
- GOVERNING LAW. This Agreement will be governed by, and construed and enforced in accordance with, the Laws of the state of Michigan, without regard to its conflicts of Law rules.
- Remedies: No remedy herein conferred is intended to be exclusive of any other remedy, and each and every such remedy will be cumulative and will be in addition to every other remedy given hereunder or now or hereafter existing at Law or in equity or by statute or otherwise.
- No Waiver: No delay or omission by either Party to exercise any right or power it has under this Agreement will impair or be construed as a waiver of such right or power. A waiver by any Party of any breach or covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be signed by the Party waiving the rights.
- Amendments/Modifications: No amendment to, or change, waiver or discharge of, any provision of this Agreement will be valid unless in writing and signed by an authorized representative of each of the Parties.
- Headings: The headings in this Agreement are for convenience of reference only and in no way define or limit any of the provisions hereof or otherwise affect their construction or effect.
- Survival: Termination or expiration of this Agreement will not release either Party from its respective obligations hereunder with regard to (a) confidentiality, data protection and security, (b) indemnification, (c) Deliverables already delivered or performed, including, without limitation, obligations of payment, warranty, and representations, and (d) any other provisions that would by their nature survive this Agreement will so survive. Notwithstanding any expiration of these Terms and Conditions, these Terms and Conditions will continue to remain in full force and effect for all outstanding Purchase Orders until such time as all of such Purchase Orders expire, are completed or terminated pursuant to the Purchase Order or these Terms and Conditions.
- Severability: If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to Law, then the remaining provisions of this Agreement, if capable of substantial performance, will remain in full force and effect.
- Use of Name: In accordance with UWM's current guidelines, Vendor will not use UWM's or its Affiliates' names, trademarks and/or logos for advertising or any other similar purpose including, but not limited to, brochures, advertisements, press releases, testimonials, websites, client reference lists or other implied or expressed endorsements, without the prior written approval of UWM, which can be withheld and withdrawn in UWM's sole discretion. Vendor will not represent directly or indirectly that the Deliverables or Deliverables provided by Vendor to UWM have been approved by or endorsed by UWM. Vendor acknowledges that this Section 23.7 is a material provision to UWM and further acknowledges that remedies at Law may be inadequate to protect UWM against breach of this provision. Vendor hereby agrees in advance that UWM will be entitled to the granting of injunctive relief in its favor without proof of actual damages in the event of breach of this provision by Vendor. Such remedy will not be deemed to be the exclusive remedy for any breach of this Agreement, but will be in addition to all other remedies at Law or in equity available to UWM.
- No Third Party Beneficiary: This Agreement is made and entered into for the sole protection and benefit of the Parties and the entities named in this Agreement and is not intended to convey any rights or benefits to any other third party other than Affiliates and Third Party Service Providers, nor will this Agreement be interpreted to convey any rights or benefits to any person except as provided in this Agreement.
- Representation of Counsel; Mutual Negotiation: The language of this Agreement will in all cases be construed simply, as a whole and in accordance with its fair meaning and not strictly for or against any Party. The Parties agree that this Agreement has been prepared jointly and has been the subject of arm's length and careful negotiation. Each Party has been given the opportunity to independently review this Agreement with legal counsel and other consultants, and each Party has the requisite experience and sophistication to understand, interpret and agree to the particular language of the provisions. Accordingly, in the event of an ambiguity in or dispute regarding the interpretation of this Agreement, the drafting of the language of this Agreement will not be attributed to either Party.
- Notices: All notices, requests, demands, and other communications that are required or permitted to be given under the Purchase Agreement shall be in writing and shall be deemed to have been duly given (a) upon receipt if delivered in person, (b) the third business day after mailing by first-class certified or registered mail, return receipt requested and postage prepaid, (c) the following business day after mailing by recognized overnight courier, with proof of delivery requested and charges prepaid, or (d) the same business day if sent by email prior to 4:00 pm ET and proof of such email delivery can be reasonably established, when sent to the mailing or email addresses first set forth above or below, or to such other mailing or email address as a party may specify by written notice to the other party in accordance with this section. Notices to UWM shall be sent to 585 South Boulevard East, Pontiac, MI 48341, Attention: Vendor Relations, with a required copy to LegalNotices@UWM.com. Notice to Vendor shall be sent to the address set forth on the applicable Purchase Order.
- Order of Precedence; Exclusion of Other Terms and Conditions: This Agreement constitutes the entire and exclusive statement of the agreement between the Parties and supersedes all prior representations, understandings or agreements between the Parties. In the event of any conflict between the terms and conditions of this Agreement and any such Exhibits or documents, the terms of this Agreement shall be controlling unless otherwise stated or agreed. Any other terms or conditions included in any click-wrap license agreements, shrink wrap license agreements, quotes, invoices, acknowledgements, purchase orders, bills of lading or other forms utilized or exchanged by the Parties will not be incorporated in this Agreement or be binding upon the Parties unless the Parties expressly agree in writing or unless otherwise provided in this Agreement.
- Representations Regarding Consumer Financial Law: Vendor represents and warrants that it has and will maintain policies and procedures in place to ensure compliance with all applicable federal, state and local laws and their implementing regulations, including but not limited to: TILA, RESPA, UDAAP, and the Dodd-Frank Wall Street Reform and Consumer Financial Protection Act. Vendor shall maintain appropriate licensure in all jurisdictions so requiring licensure. Vendor acknowledges that this is a material term of this Agreement.
- Waiver of Jury Trial: UWM AND VENDOR HEREBY KNOWINGLY AND VOLUNTARILY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT AND THE RELATIONSHIP BETWEEN THE PARTIES.
- Counterparts: This Agreement may be executed in any number of counterparts, including counterparts transmitted by facsimile or electronic transmission, each of which shall be an original as against any Party whose signature appears thereon and all of which together shall constitute one and the same instrument. The Parties hereby further agree that this Agreement may be executed via facsimile, electronic mail or electronic signature, and that such facsimile, electronic or other signature shall be valid and binding for all purposes. This Agreement shall become binding when one or more counterparts hereof, individually or taken together, shall bear the signatures of all of the Parties reflected hereon as signatories.
[END OF PURCHASE ORDER TERMS AND CONDITIONS]